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. Commission for Judicial Appointment 2005.


JUDICIAL APPOINTMENT COMMISSION

In 2004 government introduced Constitutional Reform Bill which will establish a completely new system in which judges will be appointed by an independent Commission. The new Judicial Appointment Commission was established under the Constitution Reform Act 2005 and commenced operation in April 2006. It consisted of fifteen (15) members’ commission made up 6 of them lay members, two lawyers, five judges a tribunal member and a magistrate. The Commission will be chaired by one of the six lay members. 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.

Sir Colin Campbell. The Act also provides for the establishment of Judicial Appointments Conduct Ombudsman to whom unsuccessful or disgruntled candidates can apply for a consideration of their case. The objective of the new system is to achieve a fair, open, transparent and accountable process which will in turn deliver a judiciary selected on merit and reflective of society, in which we can have full confidence.

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.

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 USE OF JUDICIAL APPOINTMENTS COMMISSION IN OTHER SYSTEMS

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. Memberships range from five to 23 drawn from Judges, lawyers, members of the legislature, the executive, law people and academics. In most case the final decision still rests with the Minister who makes the selection from list of qualified candidates provided by the commission. In general 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.


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As a way of reviewing the process of selecting judges, since 1995 advertisement of the posts in the High court have commenced. Prior to the new act secretive ‘sounding’ position was used for judicial appointment.


Before the new arrangement, the previous system of selection has been criticised for by too secretive, discriminatory and no exposed to independent scrutiny. It was condemned a promoting old boys network, homogeneous nature, while, male public school. The LC was the only person who decide on the appointment of a judge