Merit, Minus the Mystique: Rebuilding Confidence in Judicial Selection

The Judicial Appointments Commission was created to take politics out of judicial selection. On that measure it has largely succeeded. Vacancies are advertised, panels sift applications, and the Lord Chancellor no longer picks judges in smoke-filled rooms. But the commission has also cultivated a vocabulary that resists examination. 'Merit' is the central term, and it is doing too much work.

That matters in 2026 because public confidence in institutions is not sustained by assurances alone. It is sustained by intelligible reasons. The judiciary exercises public power over liberty, property and the relationship between citizen and state. Its legitimacy does not rest on a democratic mandate, and it should not. It rests on independence, expertise and fidelity to law. Those qualities are best protected when the route into judicial office is both apolitical and explainable.

The problem with a single word

Under the Constitutional Reform Act 2005, judicial selection must be on merit through fair and open competition. The commission publishes a competency framework covering intellectual capacity, personal qualities, the ability to understand and deal fairly, authority and communication, and efficiency. These are sensible headings. They are also broad enough to accommodate very different candidates.

The difficulty is not that the commission lacks criteria. It is that the criteria are applied through discretionary judgments that the public rarely sees. Panels weigh evidence, assess references and compare candidates against the framework. Unsuccessful applicants receive limited feedback. Annual reports give aggregate data, not reasoned explanations of individual selections. The result is a system that says 'trust us, we applied merit' and then asks the public to accept a conclusion without the reasoning.

This is not an argument that judges are selected badly. It is an argument that the selection system is less accountable than its defenders assume. A word that cannot be contested can become a shield against scrutiny. That is a constitutional weakness, not merely an administrative one.

What comparable jurisdictions do better

Other common-law systems have grappled with the same tension. Canada's federal judicial advisory committees assess candidates and place them in categories such as highly recommended, recommended or not recommended. The categories are published, even if the deliberations are not. Ireland's Judicial Appointments Commission publishes its procedures and annual reports, and its statutory framework sets out criteria with more precision than a single appeal to merit. Some South African judicial interviews are conducted in public, which produces a different kind of transparency — and a different kind of political risk.

None of these models is a template to copy wholesale. Canada's system remains executive-led in important respects. Ireland's has its own controversies. Public interviews can encourage performative questioning and turn selection into a spectacle. But the comparison exposes a narrowness in the British debate. We treat opacity as a necessary condition of judicial independence, when other mature common-law democracies show that it is a choice.

The useful import is not a foreign procedure. It is a principle: publish the framework, publish how it is weighted, and publish enough data for outsiders to test whether the system is working.

A limited role for Parliament

The most sensitive proposal is pre-appointment scrutiny. Britain should not adopt American-style confirmation hearings, in which judicial nominees are interrogated on likely rulings and political affiliations. That would import the very politicisation the commission was designed to exclude.

But there is a case for limited parliamentary pre-appointment hearings for the most senior offices: the President of the Supreme Court, the Lord Chief Justice and the senior tribunal presidents. The Justice Committee could hold a hearing focused on stewardship, administration and the published competency framework. It should have no power to reject a candidate on political grounds. A negative report could trigger a delay and a reasoned response from the commission and the Lord Chancellor, not a veto.

The safeguard is scope. Hearings should examine how a candidate understands the responsibilities of high office, not how they might decide a case. They should be about leadership and public explanation, not ideological compatibility. If that boundary is respected, the risk of politicisation is real but manageable. If it is not, the reform should be abandoned.

The constitutional case

The centre-right case for this reform is not born of suspicion of judges. It is born of respect for the constitution. Institutions that exercise power without a democratic mandate have a special obligation to explain themselves. The judiciary meets that obligation in its judgments, which are reasoned and public. It should meet it, proportionately, in its appointments too.

Merit is not a magic word. It is a standard, and standards need articulation. A published competency framework, better data and limited hearings for the most senior posts would not make judges political. They would make the case for judicial independence more persuasive to a public that is entitled to see how the system works.

The choice is not between merit and politics. It is between a merit system that can explain itself and one that cannot. In 2026, the second is no longer good enough.