The Constitution Society: Working to promote informed debate about constitutional reform

On what basis should members of the judiciary be selected?

The Judicial Appointments Committee (JAC) states the following:

Under the Constitutional Reform Act 2005 the JAC has a responsibility “to develop and implement our own selection processes. We have very specific duties in the selection of Judges and Tribunal members, both legal and non-legal. Our key statutory responsibilities are:

• to select candidates solely on merit;
• to select only people of good character;
• to have regard to the need to encourage diversity in the range of persons available for selection for appointments.”

There is clearly a tension between the requirements for appointment on the basis of merit and the requirement to encourage diversity. The Law Society has said that it remains concerned by the influence of the serving judiciary in the selection process, because of the composition of the JAC (out of the fifteen JAC Commissioners, five must be judicial members and three others are current or former members of the judiciary). The society also highlighted that the processes the JAC has adopted – in particular seeking references before deciding who should be interviewed for appointments, rather than after the interview – have tended to give disproportionate weight to the views of the judges in the selection process. The Law Society fears that this will tend to disadvantage those who come from less traditional backgrounds – such as women, candidates from black and minority ethnic backgrounds and especially for Recorders and senior solicitors.

Others fear that the pendulum may swing the other way, with the JAC being unduly concerned to meet the requirement for diversity over the requirement for appointment on merit to the detriment of the profession.

In any event no matter what recommendations the JAC makes, final decisions are still made by the Lord Chancellor, which leads to fears that this elaborate new procedure may bring about no real change to the selection process at all.

Would we get more representative judges if some form of public election process was involved? Or would this only politicise the judiciary and detract from the need for a sound knowledge of the law and legal process as being the main prerequisites for being a judge?

What is the role of the Lord Chancellor?

The role of the Lord Chancellor has been substantially restricted in recent years.

The Government argued in 2005 that the reforms made to the role of the Lord Chancellor would separate its different responsibilities and make a clear distinction between government, Parliament and the judiciary. However, the current Lord Chancellor is also the Minister of Justice. Critics argue that the separate roles which were the stated aim of the Constitutional Reform Act 2005 cannot be achieved while the same person is performing both functions.

The Lord Chancellor still has the final say on judicial appointments, despite the creation of the JAC. Proponents argue that this ensures continuity and a single overview of the structure and performance of the court system. Critics say that the Lord Chancellor’s role should not be given to an overtly political figure. It has been suggested that a separate requirement for the Lord Chancellor to have practical experience of the legal system and to be expressly non party-political whilst holding the office should be introduced.

Who controls the Supreme Court?

The appointment of Supreme Court judges is arguably susceptible to political interference because of the key role of the Lord Chancellor in their selection. It has been said that there is there an inherent danger here. Potentially, if the new Supreme Court attempts to ‘flex its muscles’ and challenge Government legislation a future government could try to re-engineer the composition of the court to its advantage.

Politicians upset with judicial decisions often highlight that the judiciary handles its own appointments and does not have to answer to (or necessarily reflect the views of) the public. This sentiment might in theory be mobilised to constrain the judiciary. The President of the Supreme Court, Lord Phillips, has argued that government funding might compromise its independence from the Ministry of Justice, he has also expressed a strong opposition to appointment of justices by elected officials, indicating a personal conern for maintaining independence. 

In 2003, when reforms of the House of Lords were mooted, opponents of the change said, “In the past the Lord Chancellor’s role was to uphold constitutional propriety and champion judicial independence. The constitution would be gravely weakened if that safeguard were removed and not replaced.” It has been argued that this role as ‘champion’ of the constitution will not be fulfilled by the new Supreme Court.