Jaycee How Sook Wei

July ’18 G18 The Judiciary

11/11/2018
‘The appointment of the judiciary in no way reflects the composition of society as a
whole.’
Analyse the extent to which you would support this view. Consider any steps which have
taken to improve diversity amongst judiciary.

Judges are at the centre of the legal system, as they sit in court and decide
the cases. The Head of the judiciary is the President of the courts of England
and Wales. This position as created by the Constitutional Reform Act 2005.
Under s.7 of the Act, the President’s role is to represent the views of the
judiciary to Parliament and to Government Minister.

Following a limited consultation process, the Constitutional Reform Act

2005 was passed, and it is hoped that its creation will help to put an end to the
breaches of principles of the separation of power and reinforce judicial
independence. Part 2 of the Tribunals, Courts and Enforcement Act 2007
contains provisions to try to widen the pool of lawyers eligible to become
judges. Under the 2007 Act, eligibility is no longer based on the number of
years candidates have had rights of audience before a court, but instead on their
number of years’ post-qualification experience, Lord Chancellor issued
regulation stating that the qualification of a legal executive is sufficient for
judicial appointment in the magistrates’ courts and tribunals.

Prior to the 2005 Act, the Lord Chancellor played a central role in the
appointment of the judge. The Lords of Appeal in Ordinary and the Lords
Justices of Appeal were appointed by the Queen on the advice of the Prime
Minister, who in turn was advised by the Lord Chancellor. High Court judges,
circuit judges and recorder were appointed by the Queen on advice of the Lord
Chancellor. The system can only achieve limited results because the
fundamental problem with the current system is that Lord Chancellor, has sole
responsibility for the appointment process and for making or recommending
those appointments. However, this system has no longer commands public
confidence, and is increasingly hard to reconcile with the demands for Human
Rights Act 1998.

Government lawyers are now allowed to become judges. They are able to
sit as civil recorder and deputy district judges. Judicial Appointment
Commission must have regard to the need to encourage diversity in the range of
person available for selection. The commission evaluates candidates and
recommends, on the basis of merit only. In practice, appointment to the
Supreme Court tend to be made from people with experience of being judge in
the Court of Appeal, although it is not a legal requirement. A Judicial
Appointment and Conduct Ombudsman now oversees the recruitment process
and has the power to investigate individual complaints about judicial
appointment.

In France, individuals opt to become judges at an early stage are

specifically trained for the job. The judiciary is organized on a hierarchical basis
and the judges start in junior posts, work up through the system as they gain
their experience. In the United States, the two basic methods of selection are
appointment and election. All federal judges appointed by the President, which
may include examining a prospective judge’s character and past background.
State and local judges are mostly elected. In a number of states election are used
to confirm in office judges who have been in their posts for a limited period.
Judges are paid large salaries, ranging from £107,000 for a district judge to
£215,000 for justices of the Supreme Court.

Judges can be terminated for a number of reasons: dismissal, discipline,

resignation, retirement and removal due to infirmity. Judges of the High Court
and above covered by the Act of Settlement 1700 can only be removed from
office by the Act of Settlement 1700, can only be removed from office by the
Queen on the petition of both Houses of Parliament. It has only once been used
successfully in 1830 when Sir Jonah Barrington was charged appropriating
£922 for his own use. Under the Courts Act 1971, circuit judges and district
judges can be dismissed by the Lord Chancellor, for “inability” or
“misbehaviour”. To dismiss a judge, s.108(1) of the Constitutional Reform Act
2005 provides that the Lord Chancellor will have to comply with any
procedures that have been laid down to regulate this process.

The pressure group JUSTICE had recommended the establishment of a

formal disciplinary procedure in its report on the judiciary in 1972. The
Constitutional Reform Act 2005 contains provision for the establishment of
such procedures and gives the Lord Chancellor as well as the Lord Chief Justice
joint responsibility for judicial discipline. Section 108(3) states that The Lord
Justice may give a judicial office holder formal advice, or a formal warning or
reprimand for disciplinary purposes.

Serious misbehaviour has on occasion been dealt with not by dismissal,

but by the Lord Chancellor suggesting to the judge that he or she should resign.
The Lord Chancellor has the power to remove a judge who is disabled by
permanent infirmity from the performance of his or her post. Generally, judges
retire at 70, although they are sometimes allowed to work part time up to the
age of 75.

The Labour Government’s consultation paper, Constitutional Reform

considered the creation of three possible types of commission. This include an
Appointing Commission, a Recommending Commission and a Hybrid
Commission. The key features of the new process for appointing judges are:
appointments are made solely on merit and recommended by the Commission.
The Commission is entirely responsible for assessing the merit of the candidates
and selecting candidates for appointment. The Commission must consult the
Lord Chief Justice and another judge of equivalent experience before
recommending a candidate for appointment. The Lord Chancellor has limited
powers in relation to each recommendation for appointment. He can reject a
candidate once or ask the Commission to reconsider once but he give written
reasons for this.

The recommending commissions is to make recommendations to a

Minister as to who he or she should appoint. The final decision on who to
appoint would rest with the Minister. The Hybrid Commission acts as an
appointing commission in relation to the more junior appointments and as a
Recommending Commission for the more senior appointments.

It is also criticized that judges should receive more training, not just at the
beginning of their careers but at the frequent intervals throughout. Helena
Kennedy (1992) suggests that judges might also benefit from sabbaticals, in
which they could study the practices of other jurisdictions and the work of
social agencies and reform groups.

The Court Service has issued a consultations document entitled

Transforming the Crown Court (1999). This document proposes that judges
should have planned work which begins at 9am and finishes not before 5pm,
including an increase of their daily court sittings from 5 hours to 6 hours.

In conclusion, the appointment of the judiciary does reflect the

composition of society as a whole. This is because many efforts have been taken
to reform the judiciary for this purpose.