Appointments & Diversity: A Judiciary for the 21st Century
15 February 2012
Ministry of Justice Consultation Paper prepared by Robert Hazell, Kate Malleson and Graham Gee
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- There is a legitimate role for the executive in the appointment of judges. Not onlydoes executive involvement provide a check on the decision-making of the JAC, and the selection commissions responsible for the most senior appointments, it also supplies an important mechanism of political accountability. Above all, executive involvement is critical for fostering the executive’s trust and confidence in the judges. Similar considerations apply to Parliament. If the executive and Parliament are wholly or largely excluded from the appointment process, they might be less inclined to respect the role and independence of the judiciary.
- The Consultation Paper envisages the reduced involvement of the Lord Chancellorin appointments at the lower ranks of the judiciary, but increased involvement at the higher ranks, through participating in the ad hoc selection panels for the most senior judicial appointments.
- On appointments to the lower levels of the judiciary, our view is that the goal ofincreasing diversity requires the continued involvement of the Lord Chancellor. Theexperience in a number of overseas jurisdictions, as well as in the UK, demonstrates that improving diversity does not happen automatically as a result of changes in the composition of the legal profession. There is no convincing evidence of a “trickle up” effect. Rather, increasing judicial diversity requires political will to push for reforms, some of which might not be supported by the judiciary or legal profession. Removing the Lord Chancellor from the process of selection to the lower ranks of the judiciary removes the opportunity for the exercise of this political will.
- On senior appointments, we welcome the impetus to give the Lord Chancellor agreater role. We disagree, however, with the suggested way of doing so. Rather than the Lord Chancellor participating in the ad hoc selection commissions, we favour the commissions providing the Lord Chancellor a short-list of three candidates to choose from, each candidate having been identified by the commission as well qualified and suitable for appointment. This allows for an appropriate degree of executive input by providing greater scope for the Lord Chancellor to promote judicial diversity, whilst also maintaining merit-based selection. It also maintains the Lord Chancellor’s role as a “back-stop” in case of error or malpractice.
- There should be no serving Justices of the Supreme Court on the panel that selectsany of the Justices (including the President and Deputy President). It is inappropriate for any members of the court to be directly involved in the selection of the other members.
- A consistent theme in our interviews is that the Constitutional Reform Act is rigidand overly prescriptive. Several interviewees have cited the stipulation of the number of Commissioners in Schedule 12 as an example of this, and hence we welcome the proposal for greater flexibility in determining the composition of the JAC. We agree with the suggested approached to delivering changes to the appointment process.
- As indicated at paragraph 2, we believe that there are good reasons for involvingParliament in the appointment of senior judges (e.g. the Justices of the UK Supreme Court, the Lord Chief Justice and the Heads of Division). Statements of our views on the scope for parliamentary involvement in judicial appointments and on the dubious strength of some of the arguments made against such involvement can be found in the written evidence we supplied to the House of Lords Constitution Committee as part of its inquiry into the judicial appointment process.