Selection of Judges

The process of choosing judges has been the source of some debate for many years
and has recently changed by the Constitution Reform Act 2005.
Traditionally judges of the House of Lords and the Court of Appeal were chosen by
the Queen on the recommendation of the Prime Minister, acting on the advice of the
Lord Chancellor. For High Court judges the Queen was advised by the Lord
Chancellor directly. The judicial appointments process gave the Lord Chancellor great
power of patronage in the appointment of judges.

The traditional system was said to be untenable on the ground that the old boys
network was creating a non-diverse and non representative judiciary. In the politics of
the judiciary J A G Griffiths launched a seething attack on the system which produced
an unrepresentative judiciary which he said is made up of predominantly white public
school Oxbridge educated middle aged or elderly males. The process being
detrimental to various groups, principally woman, members of ethnic minority groups
and solicitors.

The process of judicial appointment particularly of superior judges was criticized as

being clouded in mystery and secrecy with secret soundings.

Although these criticisms continued until the CRA 2005, however from 1990
important changes and developments have been brought about.

First, the Courts and Legal Services Act 1990 opened the door for appointment of
solicitors. This opened opportunity for woman and ethnic minorities.

Secondly, since 1994 there has been a system of job and advertisements for junior
posts such as circuit judges, district judges and Crown Court recorders.
This was intended to select the best candidate on merit regardless of sex race, religion
or political outlook designed to alleviate fears and criticisms of an old boy's network.
In 1998 advertising was extended to High Court appointments.
Thirdly, (on the recommendation of peach) as an important step forwards
accountability was the appointment of Judicial Appointments Commissioner.

Sir Colin Campbell was appointed the first commissioner for judicial appointments. In
2001 1st report from Sir Collins Commission the system was condemned for its lack of
transparency. In 2003 2nd report the commission was much more critical condemning
the secret soundings process as potentially leading bias in the system. In 2004 3rd
report the criticism was even more seething. It condemned the selection process as
outdated and biased towards candidates already holding the rank of Queens's Council.

In response to criticisms the Constitutional Reform Act 2005 was passed, creating an
independent judicial appointments commission that unlike the first commission, will
have a roll in the appointing of judges instead of just auditing the process.

The CRA 2005 places judicial appointments on to a statutory basis. Two schemes
apply for constitutional reasons. The first applies to the members of the Supreme
Court (which is to replace the House of Lords) and the second applies to the other
appointments.

5C appointments have to be kept separate because it is a court of the UK and not

England and Wales. Although appointment to office is by the Crown the CRA 2005
sets out the procedure for appointing a member of the SC. The LC must convene an
ad hoc selection commission if there is or is likely to be a vacancy. Sch. 8 contains the
rules governing the composition and operation of the selection commission, which
will consist of the president of the Sc and are member from each of the territorial
judicial appointment commissions, one of whom must be a person who is not legally
qualified.
Section 23 (2) provides that the Queen is to appoint SC judges. Section 26 (2)
provides that she will only make appointments on the recommendation of the PM.
Section 26 (3) provides that the PM must recommend persons notified by the LC. The
LC can only put forward are name put forward to him by the SC AC. Section 29 (2)
explains the LC’s role. His job is to consider whether to accept or reject each name
put forward by the Sc AC. Only one name at a time is put forward. If the LC rejects
the name then the SC AC must put forward another name.

Appointment to other judicial officer. Section 85-94 apply Part 4 of CRA 2005 creates
a new independent judicial appointments commission with the responsibility for the
process of selecting all judges for appointment in England and Wales. The judicial
appointments commission will make recommendations to the LC and no one may be
appointed who has not been selected by the commission. However, the LC may reject
a candidate once and may ask the JAC to reconsider once. However if the JAC
maintains its original recommendation, the LC must appoint which ever candidate
recommended.

Appointments of Lords of Appeal are governed by section 76-84. Appointments are

made by the Queen on the recommendation of the PM after the commission has made
a recommendation to the LC. Recommendation may only be made of some one
selected by a 'selection panel' set up by the JAC for that purpose.

The Act makes special provision for the appointment of the Lord Chief Justice, Mr.
and the Head of Divisions of the High Court. Section 67-75 apply.

The selection process is now significantly different to the previous position where the
PM and the LC had the ultimate power of patronage. An independent commission
should at least remove the potential for bias or partisan politics to play a role. Even in
the most recent times there have been allegations that judicial appointments have been
made not on the basis of merit but on connections to the government.

Generally, these allegations proved wrong, however the change will go a long way in
removing these allegations.

However the LC has not been removed from the decision making process and some
may have concerns as to whether this under pins the integrity of the appointment
system.

Sir Colin Campbell, the former Commissioner for Judicial Appointments although
broadly supportive of the JAC identified broad constitutional deficiencies.
1. No provision for external pro-active audit of judicial appointment.
2. No lay majority of the JAC.

Some have advocated other models for judicial appointment: UK could follow
continental examples and provide the judicial with a career structure as an alternative
to legal practice.

Another approach suggested is to follow the example of USA and make judges'
appointment subject to confirmation hearing by a (elected representative's) select
committee of HOC. This will enhance public confidence as appointment will only be
made once a scrutiny has been made by elected representatives.

Another radical approach suggested is that some judges should be elected (like USA)
which give public confidence. However, many like Lord Mc Kay suggest that this is
not the proper way to appoint professional judiciary.