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Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.

Wednesday, February 11, 2009

Judicial Appointment

Lack of transparency in judicial appointment is an increasing matter of concern. What has been done in recent years to increase transparency? How well has it worked? - Justin Santiago

Transparency in the judicial selection process has always been a concern as it was felt the judges were picked from too limited a pool that resulted in personal and corporate bias. The question focuses on whether personal bias and corporate bias has been reduced with changes to the selection pool and the selection process from which members of the judiciary are sourced from and finally chosen.

The selection process of judges viewed against the backdrop of the important role of a judge in coming to an unbiased, independent and reasoned judgement makes it paramount that it be a wholly neutral affair. This characteristic has become increasingly important with the increase in diversity of the population of the UK and the increased role of the judiciary in matters relating to the review of administrative decisions, devolution issues and human rights. It was seen to be no longer constitutionally acceptable for judges to be appointed by the government of the day and no longer acceptable for judges to be chosen from among the ‘old boys network’. There had to be a reduction in personal bias and corporate bias.

Traditionally judges were appointed from barristers who had a number of years of experience in the courts. Section 10(1c) of the Supreme Court Act 1981 limited appointment of a puisne judge of the High Court to barristers of at least 10 years standing. This requirement excluded anyone else without previous experience of appearing in court. The rationale for this was that judges had to be on the same wavelength in order that their judgements provide some level of certainty in the outcome of a trial and that they reflected the intention of Parliament. The rationale for this was that a common professional background can lead to a coherence of views and thus a predictability in the judgements.

Because of the large proportion of male to female barristers this produced a judiciary that was largely composed of males. The uneven balance of men to women in the judiciary raised the question of fairness and equality i.e. can judges properly deal with women's issues? For example it took a long while before the courts recognized the incidence of marital rape (R v R) and this could be put down to a male dominated judiciary.

The Courts and Legal Services Act 1990 was the first attempt to open up the possibility of achieving judicial office to legal practitioners other than barristers who have had many years of audience in the courtroom. As a result we now have Lard Hale of Richmond, the first female law lord who was not a practicing barrister and Lawrence Collins the first solicitor to be appointed directly to the High Court.

It is also no longer acceptable for judges to be chosen from a limited group of Oxbridge trained middle class whites due to the increase in diversity of the population of the UK and the increased role of the judiciary in matters relating to the review of administrative decisions, devolution issues and human rights.

Apart from the limited pool from which judges were selected, there have been criticisms leveled at the selection process of judges which theoretically remain in the hands of the Crown on the advice of the government of the day. The Prime Minister advises the Crown on the appointment of the judges of the House of Lords and the Court of Appeal. Judges at the level of the High Court and Circuit Bench are appointed by the Crown on the advice of the Lord Chancellor, a politically appointed cabinet minister as well as the head of the Judiciary who also personally appoints District Judges,lay magistrates and the members of some tribunals. This was compounded by the fact that the selection process for judges above the level of circuit judges was largely based onfeedback from other senior judges known as secret soundings.

The position of the Lord Chancellor with its historical admixture of legislative, judicial, and executive power was untenable as it was not seen to be sufficiently impartial in the judicial selection process and in conflict with the doctrine of the separation of powers. The Lord Chancellor as a cabinet minister (member of the Executive) is also acting as head of the judiciary (member of the Judiciary). The fear of government involvement in the selection judiciary was too apparent. This anomalous position caused some concern. Lord Steyn, one of the Lords of Appeal in Ordinary commented that “The Lord Chancellor is always a spokesman for the government in furtherance of its party political agenda.”

The creation of the Judicial Appointments Commission (JAC) through the Constitutional Refortm Act 2005 and the revamping of the role of the Lord Chancellor was supposed to cure all that. The selection of judges by the commission is expected to improve the diversity and composition of judges, transparency in selection and public confidence in general in the appointment process.

Lord Falconer remarked "The new body will ensure that politicians will no longer be responsible for the selection of judges," he said. "That has to be good for public confidence in the judiciary" (as reported in The Telegraph). However the Judicial Appointments Commission (JAC)has to be critically assessed against the present backdrop.

The commission will select appointees for the judiciary all the way from the Lord Chief Justice downwards to that of puisne judges. The JAC will make recommendations to the Lord Chancellor and he may reject a candidate only once. His recommendations will then be passed to the Queen to appoint.

However several inherent characteristics remain unaltered in that there is still a lot of involvement of the Executive in the selection process. The names have been changed but the players remain the same.

The position of the Lord Chancellor remains but the function as Head of the Judiciary of England and Wales would be taken over by the Lord Chief Justice (who also heads the Criminal Division of the Court of Appeal).

The Lord Chancellor is no longer automatically the Speaker of the House of Lords. The House of Lords will now have to create a new speakership position known as the "Lord Speaker" (or "Lady Speaker").

The newly created Cabinet position of Secretary of State for Constitutional Affairs (originally created to wholly replace the Lord Chancellor's executive function) will continue, although the holder of that Cabinet post will likely also to hold the ancient office of Lord Chancellor too.

The Lord Chancellor can now be from either the House of Commons or the House of Lords and need not be a judge.

The Lord Chancellor who is still a member of the Cabinet with a higher chance of being a political appointee and possibly without the background of a judge.

The Lord Chancellor is also still actively involved in the selection process. The JAC will make recommendations to the Lord Chancellor and he may reject a candidate and ask for a new name to be put forward. He may also be able to ask for a candidate who is not initially recommended by the Commission to be considered. The recommendations will then go up to the Prime Minister who will then advise on their appointment by the Crown. The selection of Court of Appeal judges and the to be formed Supreme Court judges will be made by the Prime Minister who will advise the Crown on their appointment.

Therefor the selection of judges is still in the hands of the the Executive and independence of the judiciary is an illusion. The judiciary is composed of members who ultimately owe their existence to politicians. The CRA 2005 firmly establishes that. Also it is with the permission and support of the Executive that tenure and salaries of judges maintained. Under these strains, the judiciary attempts to give an outward appearance of independence since an independent judiciary is a sacred cow in a democratic system of government.

The varied racial and background composition of the 15 members of the commission which will include five lay people, five judicial members, a barrister and a solicitor, a tribunal member and a lay magistrate will lend diversity to the appointers and will supposedly provide a more varied selection of candidates. However it is the Lord Chancellor who will appoint members of the JAC thus extending the influence of the government in the selection of members who are themselves charged with the selection of judges and undermining the independence of the commission.

The CRA 2005 also widens access to the judiciary by reducing the requirements as to the rights of audience which will increase the diversity of candidates.

Suggestions for further reform at increasing transparency in the selection of judges are as follows :-

1. Creating a career judiciary as in France there individuals are specifically trained to become judges. However this dos not eliminate the possibility that there will be more white males signing up for the course than females or minorities just like how certain courses like engineering attract more males than females.

2. Attracting candidates through advertisements rather than by invitation. This is definitely a step in the right direction as there would appear to be less bias. All appointments up to and including circuit judges includes advertising positions in the local press. However even this system is not without its flaws if the issue of merit of candidates is not defined and may just as well show up the same type of candidates.

3. Realizing that there were inherent restrictions as to the type of candidates selected to be judges, The Judicial Studies Board was formed in 1979 to train judges. In 1998 training included guidance on human rights issues and in 1999 included guidance on racial awareness in a multi-cultural/multi faith society as well as equal treatment issues such as disability, gender and sexual orientation. However whether such training results in judges being less biased is debatable. The training is conducted by judges for judges and this may perpetuate inherent biasness.

It is still debatable whether there is increased transparency of judicial appointments as reform is still in progress. Undoubtedly the proof will be in the pudding – whether the composition of judges is more varied and reflective of the general population as opposed to coming from a particular segment of society and thus from a certain way of thinking. In an article by Lincoln Crawford in Counsel, the journal for the Bar, it was written that judges were resistant to any interference in a system even if there was inherent institutionalized bias.

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