“The judicial appointments system can and will appoint only the very best candidates. It cannot afford to do less. Our society is not perfect: we face threats from those who would claim that it is incorrigibly divided, or inherently discriminatory. The composition of the judiciary sends an important signal. When it comes to reassuring communities there can be few stronger messages than the knowledge that our judges are the best people for the job, drawn from throughout our diverse nation and united in their service to the law, justice and the public”.Baroness Usha Prashar,
“The judicial appointments system can and will appoint only the very best candidates. It cannot afford to do less. Our society is not perfect: we face threats from those who would claim that it is incorrigibly divided, or inherently discriminatory. The composition of the judiciary sends an important signal. When it comes to reassuring communities there can be few stronger messages than the knowledge that our judges are the best people for the job, drawn from throughout our diverse nation and united in their service to the law, justice and the public”.
Baroness Usha Prashar,
First Chairman of the Judicial Appointments Commission, UK
“Finally, a merit-based selection and appointments process…. is best-placed to secure a properly diverse judiciary. We start from a position where the present bench and the legal professions from which it is fed are not properly reflective of society as a whole. But by widening the potential pool of candidates, by advertising positions widely and by working with specialist groups, an appointments body can best secure the application for judicial positions of candidates who properly reflect society at large.”
Lord Justice Toulson ‘Judging Judicial Appointments, Pilgrim Fathers Lecture’, Plymouth
The MOP, the popular abbreviation for Memorandum of Procedure, is awaited with great expectation from the current collegium which is perceived as pro-reform. Will it be the game changer? Will it redress the issue of selections from a wider talent pool? Will diversity be a central feature? When the ink dries up, we will be able to assess the contours of change and status quo which will be incorporated into the proposed MOP.
Every country is unique and so is the process which determines how judges are to be appointed. Appointments process can be bitterly divisive as in the United States or politically neutral as in the United Kingdom. While in the United States the system remains unchanged, the system in the U.K. changed dramatically. It is interesting to study the transformation of the British appointments system from a system of political patronage plagued with nepotism to an accountable and transparent system which has gained wide acceptance. Infact, the clearest illustration is the alarming track record of Lord Halsbury, one of the longest serving Lord Chancellors. His legacy provoked R. F. V. Heuston, the noted legal historian to comment:
“Halsbury appointed to the High Court and to a lesser extent to the county court, men of little or no legal learning whose previous career in public life had been largely in the service of the conservative Party or else were relations of his own.”
The allegations that a class conscious elite was appointing judges for whom political patronage, family and social connections were the determining factors were gaining currency and statistical accuracy. In fact as late as 1994, it was found that the judges educated in Oxford and Cambridge had risen to 87 per cent. The Labour Members of the House of Commons Home Affairs Select Committee were bitterly critical of the appointment process:
“We find it hard to think of a good reason why four-fifths of the senior judges should come from the same two universities.”
Prime Minister, Tony Blair’s tenure saw the radical attempt to sever the judiciary’s ties with the Executive with the enactment of the Constitutional Reforms Act, 2005 (CRA). It put in place a more transparent and accountable judicial appointments policy. Constitutional Reform Act, 2005 legislatively mandates as the requisite qualities of the candidates for judgeship:
JAC UK (Judicial Appointments Commission) developed a set of Qualities and Abilities required for judicial office.
Qualities & Abilities Description
THE DIVERSITY DEBATE
Absence of diversity in the British judiciary has been and is continuing concern. The criticism that the English judges come from affluent backgrounds educated in public schools and been to Oxford or Cambridge has been persistent and substantiated. The foremost of the critics of is Dr. Kate Malleson:
In particular, lack of openness, the continuing role of patronage, the dominance of an elite group of chambers and the need to be “known” in order to be appointed were identified as weakness in the processes and a deterrent to applicants from under-represented groups.”
The criticisms were not, as indicated earlier, not unsubstantiated when reports showed how badly women and ethnic minorities were represented in the judiciary. In its first Annual Report 2002 the Commission for Judicial Appointments had this to say on diversity:
"The current judiciary is overwhelmingly white, male and from an arrow social and educational background. It is not unexpected that the make-up of the judiciary does not mirror that of society at large, given that the judges are drawn from a narrow section of society i.e. lawyers. However, statistics suggest that the make-up of the judiciary does not reflect that of the potential pool of applicants from which it could be drawn which raises questions about equality of opportunity. It is also argued that if the judiciary was more diverse in its composition, this would positively affect public perceptions of its fairness and the degree to which it is in touch with issues of concern to society as a whole".
Independence: An Important Concern
The fundamental quality of an appointments process is to remove political bias. Political interference in the appointments process is dreaded (with the exception of the United States) in modern democracies. Baroness Jay was clear that securing the independence of the judiciary was priority:
“Here the Committee felt that neither the Lord Chancellor nor Parliament should be given enhanced powers to decide who becomes a judge. The respective roles of politicians and judges are distinct and it is important they are kept separate. The Constitutional Reform Act 2005 created an open, transparent and independent appointments process. As the Constitution Committee, we believe that the independence of the process should be preserved”.
The UK’s current system of appointments challenged a secretive and well entrenched system of appointments with unbridled powers in the hands of politicians. The credit goes to the judges, lawyers, the academics and most importantly politicians themselves who let go of a power which they once possessed. Section 3 of Constitution Reforms Act is a testimony of their commitment to guarantee to its citizens the ‘continued independence of the judiciary’:
“The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.”
Santosh Paul is an Advocate practising in the Supreme Court of India.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]