Friday, 19 February 2010

How are judges appointed?

Before the Constitutional Reform Act 2005 Part 4 the appointment of judges was something of a mysterious process managed by the Lord Chancellor who was, at the time, head of the judiciary.  The whole process was likened to a "tap on the shoulder."  The system appeared to appoint judges who were generally of high calibre but they tended to be mainly of similar background.  Graduates of Oxford and Cambridge figured largely among the appointees.  Most had been barristers and the majority had been appointed Queen's Counsel.  Since the 1960s more and more women came to practise law but a mere handful of them made appointment to the High Court or above and, to date, only one has attained the highest level as a Justice of the Supreme Court.

Since the 2005 Act there has been a Judicial Appointments Commission (JAC).  The Act requires that selection has to be "solely on merit" (s.63) but, by s,64, the JAC has to have regard to the need to encourage diversity in the range of persons available for selection for appointments - in effect looking at a wider pool of lawyers.  The Lord Chancellor - (the title was retained for certain purposes even though the head of the judiciary became the Lord Chief Justice) - issues "guidance" regarding procedures for identifying persons willing to be considered and for assessing such persons and the guidance will address "diversity" issues.  Vacancies are now advertised and applicants are subjected to selection tests and selection days involving interviews and role play.

It appears that throughout the entire process there is considerable emphasis on "diversity."  In an article in the Law Society Gazette (18th February), Baroness Prashar (JAC Chairman) gives us some insight into the work which has been done to improve diversity.  She maintains that progress is being made on diversity whilst continuing to maintain excellence.  She also indicates that some people - (does not say who) - wish to change the system so that Ministers choose from a short list handed to them by the JAC but adds that such a change would be a retrograde step.

A full examination of the Act Part 4 will reveal that a considerable role was retained for the Lord Chancellor particularly in relation to making the most senior appointments.

A point which is somewhat noticeable is that few of those appointed as Circuit Judges - (i.e. at Crown Court and County Court level) - are further promoted to the High Court.  Why is this?

The mechanics of the appointment process are now clearer.  Assessment of the success (or otherwise) of the process is likely to take a lengthy time and that begins to beg the question - just how are the judges assessed?

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