Discuss the extent to which the selection of judges is much fairer than it was in the past.

The Judicial Appointments Commission was set up on 3 April 2006, its use has led to a more professional, merit based approach to selection.

Grade: A-C | £0.00.

 

The Courts and Legal Services Act 1990 saw the start of the reform to give people other than barristers increasing rights of audience in the courts thus increasing the number of people who would be eligible to hold judicial posts and to make the selection of judges fairer. The Act made the qualification needed by judges the matter of statutory regulation. Solicitors became eligible to act as advocates in the higher courts as long as they had the appropriate advocacy qualification as well as their qualifications as a solicitor. Consequently such solicitors became qualified to be appointed as judges in the higher courts. The Act introduced the concept that established the very important principle that the selection and appointment of the judiciary should be about appointing candidates that were properly qualified and set out the qualifications needed for the different levels of judges.

 

Prior to this, and indeed for some time after the Courts and Legal Services Act 1990, judges were selected by secret soundings. The effect of this was that members of the judiciary would approach a professional colleague who may have been a member of the same chambers and let it be known that the judge thought it may be worthwhile for the colleague to let their name be put forward to the Lord Chancellor's Department. This would often follow secret and confidential enquiries being made about the individual to sound out what other members of the legal professionals may have thought. There were many shortcomings with this approach.

 

These 'secret soundings' would not have been formalised and the prospective judge may not have learnt what others may have said about them. It was often said that it was very much a case of not what you knew but who you knew that mattered. Apart from raising doubts about how such approaches addressed the question of the needs of the bench and the skills and experience required, to others interested in becoming a judge would have been ignorant of any opportunities that may have existed and would have been excluded from any process. In recent times this aspect has been linked to problems to do with lack of diversity and inequality.

 

In the absence of any formal process or procedures it became generally accepted that there was no opportunity to apply to become a judge and that one had to be approached and asked before their name was put forward to the Lord Chancellor. Judges are now selected by the Judicial Appointments Commission (JAC) established under the Constitutional Reform Act 2005. The JAC was set up on 3 April 2006 and is made up of a mixed panel of judges, lay people and lawyers. The Commission is a non-departmental government body and its use has led to a more professional, merit based approach to selection than before and where the procedures apply to everyone regardless of who they may know.

 

Applications now have to be advertised in the media, and included on certain websites. These advertisements have improved openness. The selection process begins when the JAC receives a vacancy request from Her Majesty's Courts and Tribunals Service or the Ministry of Justice. This is more formal than before. The request includes the number of vacancies; job description; the eligibility requirements set by statute; and, for salaried posts, any opportunities for part-time working. Advertisements make it clear that applications and references are required in much the same way as with any other job. Hence the application process is more inclusive and non-discriminatory and helps the general aim of working towards a more diverse judiciary by including candidates that might otherwise have not known about the vacancy or might have been excluded by the old regime. The present emphasis is about those qualified and therefore it is possible to reach a wider and more diverse range of candidates provided they have the right qualifications.

 

This is likely to be fairer as it is based upon merit. The judiciary has long been associated with the notion that only white males tend to be appointed. The judiciary has also been criticised in the past, including criticism from institutions in Europe, for not appointing more women to the judiciary. Baron Hale and others such as Baroness Helena Kennedy have spoken out and campaigned on this point for many years.

 

The JAC have sought to set out what they believe is needed for judicial office. This includes the requirement that the candidate has the five core qualities and related abilities which are required for judicial office. These are: Intellectual capacity, personal qualities, an ability to understand and deal fairly, authority and communication skills and finally efficiency. This is similar to the principle that personal qualities are needed by candidates wishing to become magistrates as well as certain abilities and this has fostered a sense of purpose and fairness about the process which did not exist with the 'old boy network'. The need for specific qualifications and qualities as well as abilities is a clear move away from the belief that who you knew was more important.

 

The JAC and the procedures they follow are also about openness and transparency and as such the process is much fairer than the closed and secret methods employed previously. The emphasis is about qualifications and the needs of the judiciary. The new open processes will also have an influence on standards and expectations of candidates for the judiciary and this is also important for the future.

 

Much more power has been given to the Lord Chief Justice who is our most senior judge. In fact the introduction of the powers of the Lord Chancellor with regard to selection and appointment have been transferred from the Lord Chancellor to the Lord Chief Justice. The initial shift of power took place with the introduction of the Constitutional Reform Act 2005 and the powers of the Lord Chancellor continued to be curtailed under the Crime and Courts Act 2013.

 

The Lord Chancellor's closeness to the appointment process had been criticised around Europe in recent years as flying in the face of the concept of the separation of powers. The Lord Chancellor is after all a member of the executive cabinet and, as such, a powerful political figure. Many were uncomfortable with the fact that the Lord Chancellor was so closely involved in the appointment of the judiciary. The Lord Chief Justice is more distanced from the executive and consequently more distanced from political interference. This would reassure members of the public that they are likely to see the sense and fairness of the new methods. The argument for the Lord Chancellor and his department being involved previously was that the nature of his department's work meant that he was in a good position to know who was suitable. However the setting up of a panel deals with the matter of openness and includes a clear and consistent set of procedures which reduces the risk of influence and interference from politicians.

 

 

(Word count 1158)

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