Should we adopt the American way and elect our judges?

I was browsing the legal section of my newspaper the other day, and I came across Mr. Justice Blake. My informant tells me that he was elevated to the High Court Bench in 2007, and in 2010, one of the final acts of Jack Straw the outgoing Justice secretary, was to appoint him President of the Immigration and Asylum Chamber of the Upper Tribunal. Sounds like something out of Gilbert and Sullivan!

Given the fact that immigration is now number one on the list of issues troubling the Great British electorate in advance of the Referendum, it is worth taking a minute or two to review some of the Chamber’s decisions. By all accounts, it has not been all plain sailing. Mr. Justice Blake has presided over a number of controversial decisions allowing undesirables to remain in the United Kingdom despite the government’s wish to deport them. In some cases the Court of Appeal has intervened to overturn his judgments, the most notable of which involved a man called Rocky Gurung, originally from Nepal. In 2012, the Court of Appeal quashed the ruling in which Mr Justice Blake and a colleague allowed him to remain in the UK, despite his conviction for manslaughter. They said the original judgment suffered from an “error of approach” and looked like “a search for reasons for not deporting him”. The decision landed Mr Justice Blake in a second controversy, only days after he was criticised for permitting an Indian male nurse to remain in Britain following a jail term for indecently assaulting a woman patient.

The question needs to be asked – is he the man for the job? In asking the question and seeking answers, we know precious little about Mr. Justice Blake. We know that before his appointment, he was a barrister in Matrix Chambers, made notorious by Cherie Blair. We know that he is one of the co-authors of a definitive book on Immigration, and that’s about it.

I got to thinking, should we know more about the man before his appointment? And not just about this man, but about all those who are appointed to sit in judgment on their fellow men, whether home grown, or Nepalese, or Indian, or Jamaican? Times have changed since the days when these appointments were made on a nod and a wink over a pink gin at the Athenaeum. Nowadays there is an appointment process which is altogether more transparent and overseen by the Judicial Appointments Commission. It came into being in 2006, a relatively recent arrival, so logic suggests that Mr. Justice Blake applied to sit as a full time judge under its auspices. But if he was deemed fit to judge when in fact he was not, is the system working?

Not for the first time should we look over the pond for guidance. You will know that judges are elected in the United States in much the same way as politicians. They put their names forward and allow the electorate to decide, not some unelected cabal. They hold office for a determinate period, usually five years, and can then stand again.

I haven’t researched how it works in America, and whether the electorate is confined to those who are legally qualified. Knowing America, I suspect it’s universal suffrage. Whether that appeals to us remains to be seen. At the moment, there are approximately 200,000 lawyers, so that’s a starting point, but there may be some who, as they run, hear a voice in every wind, and snatch a fearful dread, so we too may have to adopt a wider electorate. To coin a phrase adopted by Andrew Mitchell, we may have to run with the vox plebis. And why not? There might also be a groundswell of support for allowing serving prisoners to vote. After all, who better to judge judges than the recipients of their judicial wisdom, and judges with an eye on election or re-election might need to moderate their behaviour, in court as well as out.