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Current judicial appointments system is 'not fit for purpose', says report
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- Parent Category: Africa and The World
- Category: Law & Justice
- Created on Monday, 26 March 2012 00:00
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Current judicial appointments system is 'not fit for purpose', says report
According to new report, concept of 'merit' should be redefined to reward candidate of greatest benefit to judiciary
Joshua Rozenberg
New arrangements for appointing senior judges are needed to ensure a more diverse judiciary, according to a report published on Monday. It calls for the concept of "merit" to be redefined and raises concerns that one branch of government risks becoming a self-perpetuating oligarchy.
The report's authors are Chris Paterson from the liberal think-tank CentreForum and Professor Alan Paterson from the centre for professional legal studies at Strathclyde university.The two authors regard the current system of appointing senior judges in the United Kingdom as "manifestly untenable" and "not fit for purpose". Their report is published two days ahead of major recommendations from the House of Lords constitution committee on reforming the system of judicial appointments.
Monday's report takes issue with the commonly-accepted definition of merit, the sole criterion for judicial appointment. Lawyers have understood this to mean that appointments should go to the cleverest candidate, effectively the best or most brilliant lawyer available.
The authors argue that this encourages selectors to choose people in their own image: generally, white males with similar educational backgrounds. Instead, they say, each post should go to the candidate who would be of greatest benefit to the judiciary.
Their paper casts doubt on the so-called tie-breaker provision in the Equality Act which allows a candidate from an under-represented minority to be selected when that candidate and another are of equal merit. Since the new appointments system was introduced more than five years ago, selectors have never found two candidates of equal merit.
And the authors point out that the system is interpreted so rigidly that it prevents candidates for appointment to the supreme court from being selected from those with experience of the main work that the court now does: around half its time is now spent on cases involving public law. This can be compared to a football manager who signs only top-scoring centre-forwards.
The report recommends that the most senior judicial appointments should be made by a panel of nine people — three senior judges, three parliamentary members and three lay people, one of whom would chair the panel.
This would preserve judicial involvement and add democratic legitimacy without allowing one section of interests to dominate. The lord chancellor would retain his long-stop veto.
The authors point out that those who predicted 20 years ago that the senior UK judiciary would become more diverse through the "trickle-up" process have been proved wrong.
Canada, by contrast, is held up as an example of a country that has achieved a more representative judiciary by redefining merit. It has parliamentary hearings in which judges are questioned about their judicial philosophy, but only after they have already been selected for appointment.
In the UK, the appointment of a supreme court judge requires the direct input of up to 26 individuals, 21 of whom are judges themselves. This, say the authors, shows the "potential danger for this branch of government to become a self-perpetuating oligarchy".
They quote Lord Justice Etherton, a strong supporter of judicial diversity, as arguing that the dominant extent to which the senior judiciary is involved in the selection of the senior judiciary as "quite unacceptable … for constitutional legitimacy".
All this matters, the authors argue, because the supreme court, in particular, is increasingly required to take what can be regarded as policy or political decisions. That requires constitutional legitimacy which in turn requires an appointments system that enjoys public confidence.
Though today's report is likely to raise eyebrows among more conservative members of the judiciary, it is likely to be well received in government circles. Ministers are well aware that the new system for judicial appointments introduced by the Constitutional Reform Act 2005 has failed to change the face of the judiciary.
Indeed, by removing the flexibility inherent in the wide discretion formerly exercised by the lord chancellor, the reforms have actually made diversity harder to achieve.
Source: The Guardian UK, 26 March 2012
