Example Of Essay On The Judicial Appointment Process In The UK: Just Or Unjust?

INTRODUCTION

In the UK, which has no codified Constitution, the principle of separation of powers often an underpinning feature of democratic systems has no clear and definitive basic structure. Rather, a balancing of power only exists because it has been nurtured and embedded into the system. Nonetheless, the absence of clear foundational mechanism often results in a blurred governmental structure in which the branches are sometimes free to foray into each other’s jurisdiction. As a result, the judiciary became open to charges of governmental intrusions. To present a more independent judiciary, reforms had been made that made changes in the judicial appointments process. This essay will discuss whether the new system has resulted in a more just process compared to the old. Along the course of the discussion, it will be established that with the creation of an independent body tasked with the recruitment and selection process of judicial nominees, a mechanism has been put in place that will make judicial appointments process more just, transparent and diverse.

THE NEW SYSTEM: JUST OR UNJUST?

Prior to 2006, the main criticism against the UK judicial appointment process was that it was too immersed in party politics and was, lacking in independence. The process then was under executive control combined with consultation input from senior judges. This was because the Lord Chancellor – both a Cabinet minister of the executive and a member of one of the Houses of the legislature – played a big part in judicial appointments. Although the Queen made the appointments to the highest courts, they were chiefly based on the recommendations of the Lord Chancellor, whose Office was also tasked to select and screen nominees. A body established in 2001 to investigate these criticisms subsequently published reports detailing heavy criticisms against the judicial appointment and selection process.
The recent reform in judicial appointments, which has substantially diminished the role of the Lord Chancellor, represents a new direction towards a more just system. The diminution of the role of the executive in the process is important in bringing about a perception of an independent and just judiciary. Among the reforms under the Constitutional Reform Act of 2005 is the creation of the independent Judicial Appointments Commission (JAC hereafter), which is tasked with the selection of nominees for judicial appointments. In effect, although the Lord Chancellor still makes the recommendations, he or she has been taken out of the recruitment and selections process, thus, substantially lessening the part of the executive from the process.
The diminution of the political factor significantly brings into focus other important elements of a just system. A just process necessarily requires that appointments are based on merits and transparency. The judicial appointment process must, thus, be fashioned in such a way as to guarantee “the independence of the system from inappropriate politicisation, strengthen the quality of the appointments made, enhance the fairness of the selection process, promote diversity in the composition of the judiciary and so rebuild public confidence in the system.” Thus, aside from credentials and proven competence, nominees to the judiciary must also be of proven independence, immune from political pressure and come from a pool of diverse, rather than narrow, range of backgrounds.
The establishment of the JAC has put in place a mechanism necessary to institute an appointments process that focuses more on merits and as a consequence, diversity. The importance of a judiciary that reflects the cross-section of society is necessary to rebuild public confidence in the judicial system. Diversity, according to some authors, acts as a tie-breaker in an extremely individualised concept of merit to bring about collective competence necessary in such a body as the judiciary. Based on the experience of other jurisdictions, the creation of a body such as the JAC can augment diversity in the process because of their isolation from party politics. Diversity becomes one of the consequences when “equal opportunities are placed at the heart of judicial appointments process and promoted through sustained and proactive initiatives.” As of 2010, women and the BAME (or Black, Asians and minority ethnics) are underrepresented in the judiciary. Only 19.4% of women and 4.5% BAME are judges. Proposals for further reforms are underway to enhance diversity strategies. Such proposals include an expansion to include leaders of the legal profession, engagement of schools and colleges, promotion of the judicial careers, and development of a diverse pool plan, among others.
As the primary body handling recruitment and selection of prospective judicial nominees, JAC has instituted reforms to make the process more transparent. Transparency enhances the judiciousness of a selection process because it guarantees the absence of hidden agenda. A transparent process is made possible by the institution of improved dissemination of vacancies and related matters through JAC’s website and other media. In addition, the process has been streamlined with the help of 59 independent panel members assisting in the process of shortlisting and interviewing, and conducting mock exercises during selection day.

Conclusions

With the reforms brought about by the passage of the CRA 2005, the mechanisms for a more just judicial appointments process in the UK has been put in place. The diminution of the role of the Lord Chancellor and, thus, the negation of the political factor, has ensured that party politics do not unjustly interfere with the selection and recruitment process. The isolation of the JAC from politics paves the way for a recruitment and selection process that is based on meritocracy and characterised by transparency. Moreover, the body is free to integrate diversity as a necessary strategy for a more balanced judiciary that is reflective of the broad section of society. Nonetheless, there is room for improvement. As statistics have shown, the diversity strategies have not really been effective because members of the minorities are still underrepresented in the judiciary. However, this does not imply an unjust system, but perhaps only a less than effective strategy. This is being remedied by proposals currently underway to enhance and strengthen the system to attract more members of the minority groups.

References

Advisory Panel on Judicial Diversity, The Report of the Advisory Panel on Judicial Diversity 2010, http://www.ucl.ac.uk/laws/judicial- institute/files/Report_of_the_Advisory_Panel_on_Judicial_Diversity.pdf.
DCA, Constitutional Reform: A new way of appointing judges, Department of Constitutional Affairs, 2003, http://webarchive.nationalarchives.gov.uk/20100512160448/dca.gov.uk/consult/jacommi ssion/judges.pdf
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JAC, Triennial Review (Ministry of Justice, 2015), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/396362/jac -triennial-review.pdf
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