An Advance Analysis on Does the Selection Process of the Judiciary

Introduction:

The judicial appointment system in England and Wales has been changed with the introduction of the Judicial Appointment Commission (JAC). This is an independent and non-departmental public body [1] which was created on April 2006 under section 61(1) of the Constitutional Reform Act 2005 to be responsible for the selection of the candidates for judicial offices in England and Wales. Historically, that responsibility was solely in the hands of the Lord Chancellor, a Government minister, which led to criticism of the judiciary tend to come from a narrow social background and do not reflect diversity in the population, in terms of ethnicity, age and gender. [2] But this scenario has been changing since the new commission (JAC) has been launched to ensure the appointment of the most appropriate person in the judicial offices in England and Wales, though there are still some criticisms regarding this issue. The independent Judicial Appointments Commission (JAC) selects candidates for judicial office on merit, through fair and open competition from the widest range of eligible candidates. [3] Under the Constitutional Reform Act 2005 JAC will select the candidates for the judicial offices solely on merit and people of good character (section 63) and having regard to the need to encourage diversity in the range of persons available for selection for appointments (section 64).

Judicial Appointment System:

For an independent and accountable judiciary the appointment system of judicial offices is an important factor. The creation of the Judicial Appointment commission is intended to make the appointment process clearer and more accountable and also to review the way in which judges are appointed to try and broaden the range of diversity amongst members of the judiciary. [4] Prior to the broad discussion of the appointment process of the judges two Acts, prior to the Constitutional Reform Act 2005, namely the Courts and Legal Services Act (CLS Act) 1990 and the Tribunals, Courts and Enforcement Act (TCE Act) 2007 need to be considered in brief as to the qualifications required to become a judge. The CLSA 1990 introduced the major changes into the qualification required for fulfilling the position of judges, where the judicial appointment is still essentially dependent upon the rights of audience in the higher courts, but the monopoly of the Bar to rights of audience in such courts was effectively demolished, it opened up the possibility of achieving judicial office to legal practitioners other than barristers. [5] And section 50 of the TCEA 2007, the judicial-appointment eligibility condition, introduced a long list of possible candidates for the position of judicial offices in England and Wales which encourages more diversity in the judiciary. The present judicial appointment system is that the Lords of Appeal and the Lords Justices of Appeal are currently appointed by the queen on the advice of the Prime Minister and High Court judges, circuit judges, recorders and district judges (magistrate Courts) are appointed by the Queen on the advice of Lord Chancellor, while district Judges and lay magistrates are appointed by the Lord Chancellor directly. [6] And above the entire situations the Judicial Appointment Commission (JAC) will select the most competent person and recommend to Lord Chancellor under the Constitutional Reform Act 2005. The Lord Chancellor will continue to recommend individuals for appointment to the Judiciary to the Queen, but will no longer be involved in the recruitment and selection process. [7]

Principles of Judicial Appointment:

A consultation paper on judicial appointments, The Governance of Britain: Judicial Appointments [8] was issued by the Government in October 2007 which set out the fundamental principles of judicial appointment. The main intention of the judicial appointment is separation of power and independence of judiciary from both the executive and legislature. The another fundamental principle is that Judges should be appointed on merit which should underpin an appointments process designed to produce a judiciary which is highly competent, politically impartial, has high standards of integrity and which avoids any form of unfair discrimination. [9] The consultation paper lay out two objectives of selection on merit; one no one should be appointed to a position unless they are competent to do it; and if two or more people meet the criteria for appointment, the position should be offered to the person who would do it best. [10] Another fundamental principle of judicial appointment is to make sure the equality. It is mentioned that in the context of judicial appointments equality needs to have both an inward and an outward focus. The inward focus must look towards the working environment for judges, and the extent to which that environment supports a diverse membership which will help to support and encourage a more diverse range of individuals to apply for judicial appointment, and to consider that the judiciary, as an institution, is one in which they can play an active role and The outward focus must look at the level of engagement our judges have with the communities they serve and the extent to which they understand the complex needs and experiences of the individuals who come into contact with them from a wide spectrum of backgrounds. [11] Openness and transparency is another fundamental principle set down on the consultation paper. The reforms under the Constitutional Reform Act 2005 were designed to improve the openness and transparency on the appointment system, because the previous system was criticised for lack of transparency. The principle of efficiency and effectiveness also mentioned as a principle of the judicial appointment system. This is vital to ensuring that the process for appointing judges can deliver high quality judges, in the right numbers, qualified for the particular office they are being selected for, as quickly and efficiently as possible. [12]

Qualifications of the Judges:

The Tribunals, Courts and Enforcement Act 2007 extends the range of people who may qualify for Judicial appointment and introduced the judicial-appointment eligibility condition, where this applies, eligibility for judicial office is no longer based on possession of rights of audience for a specified period. [13] The candidate will have to show that s/he possess a relevant legal qualification for the requisite period and while holding that qualification s/he has been gaining legal experience. Another important change made by the TCE Act 2007 is to reduce the minimum length of time that a person must be suitably qualified before appointment to the judiciary. [14] For example the qualification to be a Lord Justice of Appeal or to be a High Court judge had to be held for a minimum of 10 years, this has been reduced to 7 years; and the requirement that the qualification to be a district judge had to be held for a minimum of 7 years was reduced to 5 years. [15] In addition with the condition of the qualities under the TCE Act 2007 JAC has identified five core ‘qualities and abilities’ that are required for any judicial office, although they may be adopted for different posts; thus for example a High Court judge would be expected to display a high level of legal knowledge, whereas a lay tribunal member would be expected to display expertise in their professional field. [16] Those are: [17]

1. Intellectual capacity

High level of expertise in the chosen area or profession

Ability quickly to absorb and analyze information

Appropriate knowledge of the law and its underlying principles, or the ability to acquire this knowledge where necessary

2. Personal qualities

Integrity and independence of mind

Sound judgment

Decisiveness

Objectivity

Ability and willingness to learn and develop professionally

3. An ability to understand and deal fairly

Ability to treat everyone with respect and sensitivity whatever their background

Willingness to listen with patience and courtesy

4. Authority and communication skills

Ability to explain the procedure and any decisions reached clearly and succinctly to all those involved

Ability to inspire respect and confidence

Ability to maintain authority when challenged

5. Efficiency

Ability to work at speed and under pressure

Ability to organize time effectively and produce clear reasoned judgments expeditiously

Ability to work constructively with others (including leadership and managerial skills where appropriate)

Selection process of Judiciary:

The Judicial Appointments Commission (JAC) as established by the Constitutional Reform Act 2005 will in due course to assume the sole responsibility for the process of selecting the judicial offices in England and Wales. In the press release accompanying the commencement of the new system, JAC Chairman Baroness Usha Prashar said, “the days of ‘secret sounding’ and ‘taps on the shoulder’ are long gone. Today’s judicial appointments will be assessed on who they are, not who they know.” The Constitutional Reform Act 2005 sets out various procedures for the selection of judges, as set out in the table below: [18]

Selection of Judges

Process

Judges of Supreme Court (section 26)

Sections 27-31

Lord Chief Justice, Master of Rolls and Heads of Division (Section 67)

Sections 68-75

Lords Justices of Appeal (section 76)

Sections 77-84

Puisne Judges and holders of offices under Schedule 14, e.g. circuit judges, recorders, district judges, tribunal members (section 85)

Sections 86-93

Under the provisions of the Constitutional Reform Act 2005 the first step of judicial selection process is the vacancy request of any judicial office from the Lord Chancellor to the JAC. Then the JAC will appoint a selection panel. After following certain steps that panel will select most competent person for that position for recommendation to fill the vacancy. At this stage the Lord Chancellor can either accept the selection, reject the selection (if he thinks the selected person is not suitable for the post) or ask the panel to reconsider their selection, if he thinks the selected person is not the best candidate on merit. [19] Then in case of rejection the panel may select another candidate and in case of reconsideration the panel may select the same person or anyone else to recommend to be appointed to the Lord Chancellor. And then if the Lord Chancellor thinks the recommended candidate is the right and best person, he will recommend the Queen to appoint the person for that judicial office.

Criticism as to selection of the most appropriate person:

However, the judicial appointment principle and the selection policies of the JAC trying to improve the selection and appointment system by saying the open and fair process, it still cannot come outside the question box of the scholars. There are strong criticisms as to the appointment of the judges regarding the gender, ethnicity and profession issues. Under section 64 of the Constitutional Reform Act 2005 the JAC must need to encourage diversity in the range of persons available for selection for appointments. But the members of the judiciary come from a fairly narrow section of society. [20] As to the ‘annual diversity statistics’ [21] on 1 April 2008 there are only one woman out of 12 Lords of Appeal in Ordinary which is 8.33%, where only three Lady Justices in the Court of Appeal which is 8.1% , but none from ethnic minority. In the High Court there are 11 female and 3 of ethnic minority out of 110 judges. At the level of circuit judge the representation of women and ethnic minority are 13.32% and 3.06% respectively. With all other lower courts the total representation of women and ethnic minority are 19.03% and 4.08% consequently. Another big issue is senior judicial appointments have been made from the ranks of barristers, as qualification was based upon being a barrister or more recently experience as an advocate, which limited the size and composition of the recruitment pool for the judiciary and impacted upon the type of people becoming judges. [22] Though solicitors has got the rights of audience in the higher courts now, but in practice they are not in a good number in the judiciary. The JAC has been criticised by press for failing to create more diversity in judiciary. The Guardian on 28th January 2008 Reported that “Although the new rules were designed to promote more women and ethnic minority candidates, all the judges appointed since they were introduced have been white male barristers and most were educated at independent schools.” [23] Regarding this issue JAC Chairman Baroness Usha Prashar said that “Diversity, therefore, is a major challenge. We must find new ways to attract suitable candidates, who for various reasons are put off from applying at present. Then we have to make sure that there is no bias in our processes that disadvantages any particular group whether they are ethnic minorities, women, or people with disabilities – or even white middle aged males.” [24] However the composition of the judiciary is still form a narrow section of the society, being white, largely Oxbridge educated middle class and male, who have very little or sometimes no knowledge about the large the multi-cultural social impact.

Conclusion:

The present selection and appointment system of the judiciary in England and Wales cannot ensure the most appropriate person because of the selection policies set out by the Constitutional Reform Act 2005 that JAC would select a candidate solely on merit, though there is a guideline to encourage more diversity in judiciary. JAC Chairman said that “Encouraging diversity in the range of persons available for selection for judicial appointment is a bigger challenge.” [25] The Ministry of Justice said: “Improving diversity is a complex challenge, and can’t be achieved overnight, but we are committed to working closely with the JAC and Judicial Office in driving forward this strategy.” [26] The Law Society, which represents solicitors, says disproportionate weight is still given to the views of judges, with a negative effect on the numbers of women, ethnic minorities and solicitors who reach the bench. [27] The only reason behind this complexity to ensure a more diverse judiciary might be the lack of the representatives of the communities in the profession from where it is drawn. Despite Government could adopt more alternative ways by following other jurisdictions which are convenient, reliable, fair and accepted by the general people in order to create a more diverse judiciary with a composition of most appropriate and competent persons in addition to the present system for the sake of the separation of powers and independence of the judiciary.