Judicial Appointments - Essay Example

paper Judicial appointments The judiciary in England plays the role of interpreting laws during disputes and cases. It appliesthe laws which parliament lays down. Judges also play an important role in developing the law. Parliament however retains the right to change or override the common law. Judges are required to interpret and apply the law in order to prevent the executive from exceeding its own powers. England has various levels of judiciary with different styles of judges. There is a strict hierarchy of judges. Currently there are 1,825 judges in England. The judiciary is headed by the Lord Chief Justice. The Lord Chancellor is second to the Lord Chief Justice and looks after disciplinary matters over judges. He also plays a role in appointing judges. Master of the Rolls, President of the Queen’s Bench Division, President of the Family Division and Chancellor of the High Court are entitled as the “Right Honorable”. The House of Lords consist of judges known as a Lords of Appeal. They are also members of the Privy Council of the United Kingdom. Lord Justices are the judges of the Court of Appeal. They are also Privy Counselors. High Court judges are referred to as the Right Honorable. Circuit judges are known as His/Her Honor Judge. Recorders are part time circuit judges who are usually barristers or solicitors. District judges sit in the County Court and Magistrates Courts. Part time solicitors and barristers can also work as District judges. Magistrates sit in Magistrates Courts and Youth Courts to give judgment. They are addressed as “Sir” or “Madam” (Rivlin, 24). Historically the executive has been responsible for judicial appointments. The Queen of England appoints the judges on the advice of ministers or by them on her behalf. The degree of involvement by the executive has changed in the past few years. The selection of judges has now been limited by the executive. The Lord Chancellor played an important role in the process of appointments. He also could make recommendations to the Queen or on her behalf. In the case of senior appointments, the Prime Minister made recommendations or advised the Queen. The Lord Chancellor appointed judges by conducting informal discussions with senior members. This was a closed system which was severely criticized. Senior judges were selected if they fit perfectly with the establishment. Judicial appointments evolved over the time in response to such criticism (Plucknett, 96). Lord Irvine, the Lord Chancellor in 1997 announced that High court appointments would be open to all members of the legal profession. An annual report would also be provided to the parliament. Sir Leonard made several important recommendations for making judicial appointments. These recommendations included greater consistency of process and consultation arrangements. In March 2001 the Commission for Judicial Appointments was established. It was responsible to audit the judicial appointment process and investigate complaints in individual cases. The CJA could not make decisions and did not act as an effective check on decision making. However it has been important in identifying possible flaws in the judicial appointment system. In recent years the selection process has improved. Recently the role of the executive in appointing judges has been limited. The establishment of the Judicial Appointments Commission has now assumed responsibility for the process of selecting judges. The system has become more open and transparent. The Judicial Appointments Commission consists of fifteen Commissioners. It also has five judicial members, five lay members and magistrate. Commissioners are appointed by the Queen. Lord Chancellor advises the Queen in accordance with the procedures of the Judicial Appointments Commission. The appointments process is regulated by an independent Commissioner for Public Appointments. When a vacancy arises in a judicial office, the Lord Chancellor requests the JAC to make a selection to fill each vacancy. The selection panel than applies the selection process. It selects person for each vacancy. The JAC makes selections based on merit and good character. It also has to encourage diversity in the range of persons appointed for the higher judiciary. The Lord Chancellor has the option of accepting the selection, rejecting it or requiring the JAC to reconsider. He can only reject on the basis that person is not suitable for the office concerned. The selection can only be reconsidered if there is not enough evidence that the person is suitable for the office. If any person is rejected by the Lord Chancellor, the JAC or selection panel must select a different candidate. If he has required reconsideration, the JAC can select the same person or a different candidate. The Lord Chancellor can accept, reject or reconsider the selection (Hodgson, 50). If the Lord Chancellor rejects or requires the JAC to reconsider its second decision than they must select a fresh candidate. However the fresh person cannot be the same who was selected the first time. The Lord Chancellor must accept the person selected by the JAC for the third time. He however retains the right to accept a selection which he had asked for reconsideration at the first or second time. There is a distinct process for appointing justices of the Supreme Court. The JAC is not involved in the appointment of Law Lords. The Lord Chancellor makes the selections in consultation with the senior judiciary. The Queen of England appoints the Supreme Court judges. The Prime Minister makes recommendations for the appointments. After approving the selection, the candidate is than appointed formally. The Lord Chancellor and The Queen both make senior appointments (White, 20). The Queen plays an important role according to the constitution because all judges swear of oath of allegiance to the Crown. The British constitution derives its entire jurisdiction from the Crown. The judiciary plays a big role in the appointments process. Under constitutional reforms, the judiciary’s role remains critical. Judges can provide information on the ability and character of candidates. The Lord Chancellor consults the Lord Chief Justice for new court appointments. The Lord Chief Justice seeks the views of the Presiding Judges for appointments below the High Court. Judges are a major source of reference. The JAC consults with the Lord Chief Justice or an experienced legal person. The Lord Chief Justice is consulted by the Lord Chancellor for new appointments to courts. The views of the Presiding Judges for appointments below the High Court are sought by the Lord Chief Justice. Parliament has no role in the appointment of judges. It however takes a keen interest in the process. Parliament has sometimes played a key role in the removal of senior judges. Judicial offices were opened to women in 1919. However during the 1940s, Sybill Campbell became the first women judge. England has a higher percentage of women judges. However they have still not reached the higher levels of judiciary. Dame Brenda Hale was appointed to the proposed Supreme Court, becoming the highest seated women in the United Kingdom judiciary. Less than twenty five percent of the English judiciary comprises of women. Ethnic minorities also form less than seven percent of the judiciary. There is a need to for ethnic minorities to join the judiciary (Baker, 50). The creation of the Judicial Appointments Commission has provided more transparency and accountability for the process of judicial appointments. This is sharp contrast to the previous decade in which the power to appoint judges was based in the hands of Ministers. This system was criticized for its potential to damage the independence of the judiciary from the government. Under the current system the executive remains involved the process. The Lord Chancellor can accept, reject or reconsider the recommendations of the Judicial Appointments Commission. The Queen makes the majority of appointments for the higher judiciary, but the Lord Chancellor or Prime Minister can also give their advice. There is a debate as to whether the role of the executive should be in the appointment of judiciary. Proponents argue that it is essential to maintain the executive’s confidence in the judiciary. Removing the executive from the decision to make appointments would further separate the executive and judiciary. The Lord Chancellor would cease to operate as a bridge between the government and judiciary. It would also remove challenges to the JAC’s individual recommendations. Ministers are accountable to Parliament for the decisions they make. Appointments by the Ministers can be perceived as a source of patronage. The Lord Chancellor has the power to question the appointments made by the JAC. Safeguards should be necessary to maintain the independence of the judiciary and senior judges. The Lord Chancellor’s ability to reject a selection made by the JAC should be limited or removed. He has to provide reasons for rejection of a candidate. Limits should also be placed on the Lord Chancellor’s ability to require the JAC to reconsider a selection. The reasons must be given in written form. Further limitations should be imposed on the Lord Chancellor’s ability to reject a selection. The number of stages at which the Lord Chancellor rejects or requires reconsideration should be reduced. This will be a means of checking the possibility of an unacceptable appointment. Another option could be reducing the Lord Chancellor’s role to a formal one. He would be able to question the process but not question individual selections. This would enable the Lord Chancellor to remain a bridge between the judiciary and government (Cohen, 60). Currently the Queen appoints the most senior judges on the advice of the Prime Minister. The debate will continue as to whether the Prime Minister would play a limited role in the appointment of senior judges under the current system. The executive acts as a check on JAC appointments. Removing or reducing the role of the executive would result in a risk that the accountability to Parliament would be reduced. Some people have argued that giving parliament the right to exercise a greater role in judicial appointments would be beneficial. Parliamentary involvement in judicial appointments is minimal (Slapper, 70). Currently the judiciary is not accountable to Parliament. Adopting such an approach would create the perception that judicial appointments are politicized. It would reduce the confidence on the independence of the judiciary. A practical option would be to allow Parliament to hold non binding hearings on appointments before they were confirmed. This would provide scrutiny of the JAC’s selection and without any difficulties by a formal power of veto. A further possible option is for Parliament to hold Select Committee hearing for candidates after they have been appointed. This would allow Parliament a degree of oversight in the JAC’s decisions. It would not have the ability to influence appointments themselves. Such an approach would lessen the risk of politicization of the judiciary. It would also prevent additional delay over the appointment process since hearings could take place once the appointment has been made. The issue of Parliamentary resources would remain unless such hearings are restricted to the most senior posts (Gifford, 24). The independence of the judiciary remains a controversial issue while appointing judges in England. While reforms have been implemented there is still much that needs to be done. Judges need to be selected on the basis of merit, qualification and ability. The judiciary must open its doors to ethnic minorities and women. Historically the executive has been responsible for judicial appointments. The Queen of England appoints the judges on the advice of ministers or by them on her behalf. The degree of involvement by the executive has changed in the past few years. The selection of judges has now been limited by the executive. The Lord Chancellor played an important role in the process of appointments. He also could make recommendations to the Queen or on her behalf. The debate about judicial appointments will continue. There will be heated discussions about limiting the role of the executive. There will also be talks of involving the parliament in the process of appointing judges. The role of the Prime Minister in making recommendations has also been of importance in recent years. Some people argue that the role of the Prime Minister must be limited while others believe that it is crucial for the executive to play a role in appointing judges. The threat of politicization in appointment of judges remains a crucial debate in the United Kingdom. Works Cited: Geoffrey Rivlin, Understanding the Law, Oxford, 2004 Theodore FT Plucknett, A Concise History of the Common Law, Butterworth & Co, 1996 Judy Hodgson (ed), The English Legal Heritage, Oyez Publishing, 2000 White, Robin C. A. The English Legal System in Action: The Administration of Justice. Oxford, U.K; New York, NY: Oxford University Press, 1999. Baker, John Hamilton. An Introduction to English Legal History. 4th ed. London, U.K; Dayton, Ohio: Butterworths/LexisNexis, 2002. Cohen, Berring. How to Find the Law. Chapter 16, English and Commonwealth Materials Slapper, Gary. The English Legal System (London: Cavendish, 2006) Gifford, D.J. Understanding the English Legal System (London: Cavendish, 2004) Read More