ESSAY - JUDICIAL SELECTION SYSTEM

JUDICIAL SELECTION SYSTEM

BACKGROUND

Approximately 900 full time Judges are appointed annually making it a major administrative process. All ranks below the Court of Appeal are now advertised and candidates are required to complete application form (high court judges can still be made by ‘invitation rather than application). Candidates must fulfil eligibility requirements of certain period of judicial office. Opinion of judges and senior lawyers are sought regarding the suitability of applicants. The consultation process was to sound out the system and no candidate was appointed without a significant body of support among the consultees. The process was described by critics as a ‘secret sounding system’ i.e. measuring the depth of water to see whether it was safe for a ship to proceed; inconsistencies in the way candidates were selected; differences between the treatment of nominees and applicants, lack of clear criteria, obscurity as to how information gathered were treated and weighted, mechanism for assessment were unrelated to the core competencies required for a post; poor interviewing techniques; systemic bias against less visible candidates: often solicitors, women and ethnic minorities; unreliable audit trails as a result of poor recording keeping; culture of unquestioning deference towards established judicial attitudes.

JUDICIAL APPOINTMENT COMMISSION

In 2004 government introduced Constitutional Reform Bill which established the Judicial Appointments Commission, with responsibility for selecting judges. This Commission is an independent, non-departmental public body which was created on 3 April 2006 as part of the reforms following the Constitutional Reform Act 2005. It takes over a responsibility that was previously in the hands of the Lord Chancellor and the Department for Constitutional Affairs (previously the Lord Chancellor’s Department), although the Lord Chancellor retains responsibility for appointing the selected candidates. The Lord Chancellor has also given up his other judicial functions, including the right to sit as a judge in the House of Lords. The Commission launched its new system on 31 October 2006, when it was to be used for the first time to select up to 25 new High Court judges, with adverts appearing in the press. The Commission is made up of 15 members: two from the legal profession (one barrister, one solicitor), five judges, one tribunal member, one lay justice (magistrate), six lay people, including the chairman, supported by a staff of over 100. The members of the first Commission include, as Chairman, The Right Honourable The Baroness Prashar, CBE and as one of the lay members one of the Professors of the University of London, Professor Dame Hazel Genn.

It will recommend the name of one candidate to the Secretary of State for Constitutional Affairs, who can accept or reject and asked for a new name giving reason. Once the name is accepted, it will be sent through the Minister to the Queen for approval. The commission will be responsible for the appointment of all judges with the exception of Supreme Court. Appointment of Court of Appeal Judges will still go to the Prime Minister for approval, though he or she will not be expected to exercise discretion in the process. Supreme Court judges will be appointed by ad-hoc committee made up of President of the Supreme Court, Deputy President of the Supreme Court and one each from the territorial judicial appointment commissions (Scotland, Wales and Northern Ireland) who will nominate one candidate to the Lord Chancellor, who can accept, ask for reconsideration or reject. The system for appointing judges of Supreme Court will be rather different. Amongst the main changes which the JAC has brought in are:

a) A new, simplified definition of merit: the JAC has published the five core qualities and abilities required to make a good judge.
b) A fairer system for filling High Court vacancies: all candidates must apply for vacancies, all short-listed candidates will participate in face-to-face discussions to explore their qualities and abilities, and references will be sought fairly and openly.
c) A more streamlined and objective application process: the JAC has reduced the length of the old application form from over 20 pages to nine, and has introduced new, impartial processes for all judicial office-holders.
d) Improved marketing of vacancies: the JAC’s advertising will be more prominent and better targeted to encourage more people to apply.

All candidates will be judged on merit measured by five core qualities: intellectual capacity; personal qualities (integrity, independence, judgment, decisiveness, objectivity, ability, and willingness to learn); ability to understand and deal fairly; authority and communication skills; and efficiency. The new system also widens access to the judiciary by reducing the requirement as to rights of the audience thus creating more opportunity for women and ethnic minorities. JAC is a positive test as it increases transparency and protects the UK constitution from possible challenges under ECHR.

The Judicial Appointments Commission is separate from the Commission for Judicial Appointments (CJA). The CJA was established in March 2001 to review the procedures for the appointment of judges and QCs, and to investigate complaints into those procedures. It closed on 31 March 2006 with the establishment of the Judicial Appointments Commission and the Judicial Appointments and Conduct Ombudsman (JACO). A separate Judicial Appointments Board for Scotland and Northern Ireland Judicial Appointments Commission undertake similar functions for Scotland and Northern Ireland, respectively. Students are advised to go to the JAC website at www.judicialappointment.gov.uk

PREVIOUS SELECTION METHOD

Alternative models such as a European style career judiciary or a US style voting by (e.g.) the commons or the public seem ill-suited to the English common law tradition. Secretive invitation process will be abolished. All potential judges have to apply and passed through the selection procedure. England and Wales does not have what is called ‘career judiciary’ as is found in other European Countries. Judges are appointed from among successful lawyers in practice. Before 2004 Judges of the Court of Appeal and above were chosen by the Queen on recommendation of the Prime Minister, acting on the advice of the Lord Chancellor. For High Court Judges and below the Prime Minister played no role, the Queen was advised by the Lord Chancellor directly. They system worked well when the judiciary was very small. In 2001, a limited judicial appointment commission was established in response to the concern about lack of independence and transparency as the system grew. The Commission has power to advise on the appointment process, review individual cases but not to play a part in the appointment decisions themselves

The appointment of Judges by a Politician, the Lord Chancellor traditionally provided an element of accountability in the system by maintaining the link between the Judiciary and elected representatives. This argument was weakened by the fact the Lord Chancellor was not elected. In most parliamentary systems, the selection function is carried out by Minister of Justice who is also an elected member of the legislature and so is directly accountable for his or her decisions. The appointment of Supreme Court Judges is likely to attract more interest in future.

Various means of public accountability can only be effective if the system itself is open to scrutiny. In 1980 in response to criticism of lack of transparency, the Lord Chancellor Department introduced a number of changes designed to open up the process. In 1998 the department began to produce an annual report explaining the priorities and goals and process and setting out figures for applicants and appointments for all the ranks. It is arguable that the adoption of Judicial Appointment Board for judicial appointment in Scotland contributed to the change in the system.

Criticism of the composition of the judiciary is commonly hears. Of particular concern is the fact that very few women, black lawyers and solicitors are appointed to the higher ranks. The official response is that those from non-traditional background will ‘trickle up’ onto the bench as they move up in the legal profession. Critics said those from the non-traditional background do not move up at the same speed or in same career patterns, as those from the traditional background. They pointed out at cultural and structural barriers in form of the tradition of appointing to the senior judiciary exclusively from the bar and within the bar from among QC practicing mostly in small number of elite chambers.

The appointment under the new commission is merit based and members of the commission are appointed by the LC who will also be in control of the whole procedure. The system also broadens the range of applicants from which judiciary is drawn to include:

a) Legal executives who have professional qualifications and working in solicitors firms;
b) Patent agents and Trademark Attorneys will be able to apply to become judges in the Patent courts.

There was also a reduction in the number years to have right of audience in courts with the new arrangement in its entity creating more opportunities for women and ethnic minorities to play a significant role in the Judiciary. From January 2006 when Lady Brenda Hale took up post as the first Female Law Lord and the current regime on appointment to the Bench are positive test as it increases transparency and protects the UK constitution from possible challenges under ECHR.

CREATION OF SUPREME COURT

The Constitutional Reform Act 2005 made provision for the creation of a new Supreme Court for the United Kingdom. The Act:

a) Abolished the Office of Lord High Chancellor of Great Britain (Lord Chancellor)
b) Established a Supreme Court for the United Kingdom and to take over the existing role of the Law Lords and some powers of the Judicial Committee of the Privy Council
c) Changed the position of the Law Lords Chief Justice and Privy Council
d) Lord Chancellor’s role in the judiciary is greatly reduced and the holder is no longer the automatic speaker of the House of Lords
e) Lord Chancellor can now come from either the House of Lords or the House of Commons
f) The Lord Chancellor remains the custodian of the Great Seal
g) The House of Lord will now create a new Speakership position ‘Lord/Lady Speaker and Deputy speaker
h) Middlex Guildhall in Parliament Square was chosen as the new location of the new Supreme Court.

Creating a new Supreme Court will mean that the most senior judges will be entirely separate from the Parliamentary process. The new Supreme Court is scheduled to open for business in October 2009. At present the most senior judges, the Lords of Appeal in Ordinary, or Law Lords as they are often called, sit in the House of Lords. There are 12 of them. The House is the highest court in the land – the supreme court of appeal. It acts as the final court on points of law for the whole of the United Kingdom in civil cases, and for England, Wales and Northern Ireland in criminal cases. Its decisions bind all courts below. As the Law Lords are members of the House of Lords, this means that they not only sit judicially, but are also able to become involved in the debate and subsequent enactment of government legislation (although, in practice, they rarely do so).

Creating a new Supreme Court will mean that the most senior judges will be entirely separate from the Parliamentary process. The new Supreme Court will be a United Kingdom body legally separate from the England and Wales Courts since it will also be the Supreme Court of both Scotland and Northern Ireland. As such it falls outside of the remit of the Lord Chief Justice of England and Wales in his role as head of the judiciary of England and Wales. Until the Supreme Court opens for business in October 2009, any queries should be addressed to the Department for Constitutional Affairs.

Canada, the US, Ireland, South Africa, Israel and many continental European Jurisdiction have judicial appointment commissions. Scotland has one since 2002 and Northern Ireland is in the process of setting up a similar body. In most cases the final decision still rests with the Minister who makes the selection from list of qualified candidates provided by the Commission. In general, judicial appointment commissions have reputation for improving openness and instituting a culture of transparency. Evidence also suggests that judges appointed by the commission are as competent as those selected by the executive alone while also contributing to appointment of a more diverse bench.

There is still criticism of the lack of openness in the consultation process. CRA is a positive test as it increases transparency and protects the UK constitution from possible challenges under ECHR. However, the tension between independence and accountability is an ongoing, probably insoluble and arguably, healthy future of a judicial appointment process in a liberal democracy

Alternative models such as a European style career judiciary or a US style voting by (e.g.) the commons or the public seem ill-suited to the English common law tradition. In the US and Northern Ireland it has been claimed that they are unacceptably politicised.