Judiciary Legal Judge
Critically evaluate the current procedure for appointing members of the judiciary. Assessment Criteria .Demonstration of an understanding and a critical awareness of the sources of the English Legal System. Identification and analysis of issues, and abstract ideas; .Application of legal principles, citing relevant authorities; .Research Skills (in locating relevant standard information sources and literature); .General presentation and,specifically, accurate spelling and grammar, compliance with legal conventions, and provision of a bibliography. Yo personal explanation of the principles involved, identification and organisation of your answer (including the critical analysis and clear concise cogent reasoning) correctly quoting sources (e.g. textbooks, articles, case judgments, etc.
The judiciary is held in high regard for its quality, independence and probity. At the same time … public confidence in the judiciary is not as high as it might be and judges are out of touch with the concerns of the public (Law Society, 2005).
In considering the appointment of the judiciary, one is logically concerned with the particular race, class and gender position of the majority of judges. It is an objective and well documented truth that the majority of judges are white, middle class and middle aged to elderly. Any discussion relating to the appointment of the judiciary therefore presents two fundamental questions: are the best people being selected from the available pool of talent and does the present procedure ensure appointment of the wrong type of judge generally, therefore leading to inherently biased decisions?
The limited class background of the judiciary has been established in figures issued by the Lord Chancellor’s Office across the years. One such report, in May 1995, revealed that 80% of Lords of Appeal, Heads of Division, Lord Justices of Appeal and High Court judges were educated at Oxford or Cambridge (Slapper & Kelly 2004). In response to these figures, Sir Thomas Legg, ‘showing insouciance to the level of arrogance,’ stated that:
It is not the function of the professional judiciary to be representative of the community. Such a response, if it is true, or even acceptable, must surely undermine the right of such an unrepresentative body to take action in the name of the majority, as the courts do in their use of judicial review.
More recently, politics UK, reported that 15.8% of judges are women and just 3.4% come from ethnic minority groups (Judicial Diversity, October 2004).
The specific requirements for those wishing to fulfil the role of a judge will now be discussed. The criteria for selection are ability, experience, standing, integrity and physical health (Judicial Appointments, 1995). The Courts and Legal Services Act 1990 (hereinafter CLSA) currently regulates the qualifications required for filling positions of judges. The main qualifications for appointment include: for the Lord of Appeal in Ordinary, comprising of the holding of judicial office for two years, or a possession of a fifteen tear Supreme Court qualification under CLSA; for the Lord Justice of Appeal, requiring the holding of a post as a High Court judge, or possession of a ten year High Court qualification under CLSA; for the high court judges, the holding of a post as a circuit judge for two years, or possession of a ten year High Court qualification under CLSA (any deputy judges must be qualified in the same way); for circuit judges, the holding of a post as a recorder, possession of either a ten year Crown Court qualification or a ten year county court qualification under CLSA, the holding of certain offices, for example district judge, Social Security Commissioner, chairman of an industrial tribunal; for recorders, candidates must possess a ten year Crown Court or county court qualification under CLSA, and; for District Judges, requirement of a seven year qualification under the CLSA is obligatory.
It is sufficient to follow this examination, with the more general question of how people are deemed suitable for such a position. Theoretically speaking, all judicial appointments are at the hands of the Crown, although, the Crown is ‘guided’ by the government in power. Furthermore, the Prime Minister also advises the Crown on appointment of other senior judges, including the Law Lords and Appeal Court judges. Such a clear extent for patronage has been the subject of criticism (Slapper and Kelly 2004). One illustrious example concerns Sir John Donaldson who achieved high office, some believe, according to his service in the Industrial Relations Court established by the Conservative government in 1971, in order to pursue its trade union policies. In addition, as Slapper notes, Prime Ministers, it is suggested, have prohibited recommendations made by Lord Chancellors. High Court judges and Circuit Bench judges are appointed by the Crown on the recommendation of the Lord Chancellor. Furthermore, the Lord Chancellor personally appoints district judges, lay magistrates and the members of some tribunals. The most fundamental problem being raised here is how the Chancellor reaches his decision to recommend and appoint individuals to the judiciary. Indeed, the widespread belief is that the whole system is over-secretive and that the appointment policy is a highly conservative one. Because the procedure is essentially so limited and is shrouded in secrecy, one argument is that commentators are willing to be more frank and open than would be the case if open to wider inspection. This seems to be a worrying justification.
Professor Griffith argues that by virtue of their background and training, judges are not suited to protecting the rights of the poor, socially and economically disadvantaged, or members of groups or associations in society whose outlook and background is so very different to the ‘elite’ judges (Griffith, 1997). On the other hand, Simon Lee claims that just because judges are white, old, rich, upper class and educated in public school and Oxbridge does not mean that they will necessarily think the same way (Lee, 1988.)
Although the historical considerations regarding judiciary appointment can seemingly be criticised at many levels, the future for judiciary appointment looks more promising. It is submitted that this favourable outlook commenced in 1994 when advertisements were used, for the first time, to recruit potential contenders, essentially this included: assistant recorder, deputy district judge and circuit judge. In 1998 the procedure was extended to the High Court Bench. In the same year, Lord Irvine continued the strategy to persuade women and other minorities to apply for judicial positions:
Yes, it is true that many judges today are white, Oxbridge educated men. But, it is also true that they were appointed on merit, from the then available pool, at the time the vacancies arose … It does not mean that the social composition of the judiciary is immutably fixed. For too long barristers were drawn from a narrow social background. As this changes over time, I would expect the composition of the Bench to change too. That is inherent in the merit principle. (Speech to the Association of Women Barristers, 1998).
The Commission for Judicial appointments was set up following a report on the judiciary carried out by the British section if the International Commission of Jurists in 1992. The Commission has been initiated as an independent body and was set up to review the judicial and Queen’s Counsel appointment procedures and to investigate complaints about the operations of the procedures. The Commission is a major step forward in the development of a more open, equal and diverse system of appointments practice.
The Secretary of State for constitutional affairs, Lord Falconer, launched a consultation paper in 2004 on judicial diversity. In the report he claimed that appointments will still be made on merit, but that there was no conflict between merit and diversity:
A more diverse judiciary is essential if the public’s confidence in its judges is to be maintained and strengthened. This is happening. But it is not happening quickly enough. We need to find out why people from diverse backgrounds and with disabilities are not applying for judicial appointment in the numbers we might expect and, once we have identified the barriers, we need to do something about removing them.
The recently proposed alternatives to appointment would not eradicate all scepticism as to the judges’ impartiality, but they would certainly be an improvement on the existing system. However, a final, thought provoking point is worthy of consideration: if law were completely beyond the scope of judges to manipulate their own ends, then social diversity would be immaterial, as they would be in no position to influence the operation of the law (Slapper, 2004). Therefore, although judges are supposed to simply apply law, not create it, they possess a large degree of discretion in determining which laws apply, what they mean and how they should be applied. To this end, it is paramount that the judiciary satisfactorily represent society at large.
Bibliography
- http://www.dca.gov.uk/judicial/ja-arep2004/partone.htm
- http://www.cja.gov.uk/
- http://www.politics.co.uk/issueoftheday/todays-issue-judicial-diversity-$3604783.htm
- Lee, Judging Judges 1988, London: Faber & Faber
- Griffith, The Politics of the judiciary, 5th ed, 1997, London: Fontana
- Slapper and Kelly, (2004) English Law, 2nd edition, London: Cavendish
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