UK Legal System: Judicial Appointments Commision - Coursework Example

1 The UK Legal System: Judicial Appointments Commission The Judicial Appointments Commission (JAC) for England and Wales, launched April 3, 2006, is a statutory fulfillment of vital legal restructurings embodied in the Constitutional Reform Act of 2005. The said Act, viz., Section 61, Chapter 1 of Part 4, which also established a Supreme Court in the United Kingdom and abolished the appellate jurisdiction of the House of Lords, endowed the JAC with three functions: to base appointments on merit alone; to consider candidates who are of good moral character, and; to “encourage diversity” among applicants (CRA 2005). Baroness Usha Prashar heads the JAC as its lay Chairwoman with fourteen other Commissioners, five of which are judicial members, one barrister, one solicitor, five lay members, one member who is deputy chairman or chairman of a tribunal, and one lay justice (JAC 2007). The creation of an independent body whose sole task is to ensure that the right and the best people are selected to do the job of the dispensation of justice is a realization of the recommendations of the Nolan Committee. The Committee, established in 1995 to investigate the cause of growing public dissatisfaction with public officials in general made recommendations, inter alia, that the following considerations should be taken into account in appointing members of the judiciary: the basis of the appointments should be merit; the selection process must be formal and impartial by an independent appraiser; the board composition should be a mixture of “relevant skills and background,” and; there must be transparency in the selection process (Weir & Beetham 1999). 2 The Old Judicial Appointment Process: “Secret Soundings” and “Taps on the Shoulder” The system of judicial appointments before the constitutional reforms were finally put into effect, was, according to the Law Society as quoted by Michael Freeman in his book Current Legal Problems, “fundamentally flawed and needs radical reforms.” The standard procedure then practiced in the appointment of British judges was the so-called “secret sounding” (2000). The “secret soundings” refer to a system of consultation held secretly in which a list of elder judges numbering about seventy are asked about potential candidates for the judiciary (Gibb 2006). This practice bred a kind of system that lacked transparency and was viewed as having “all the elements of an old boys’ network.” There is no wonder then, according to Freeman, that it is noticeable that most of the members of the Bench seem to have a kind of “uniformity” with respect to their “social background, gender, and ethnic membership” and “largely populated by relatively elderly, white, middle-class Christian men” (Freeman 200). A person could also be appointed to the Bench by a mere “tap on the shoulders,” an informal way of appointing somebody who is familiar to the appointing person (Gibb 2006). This speaks not only of the informality of the whole process but also the fact that the pervasive culture of “whom you know” and “the right connections” pervade judiciary appointments. The practices of “secret soundings” and “taps on the shoulder” have long been the observed in the judiciary selection and appointments in Britain that they had been ingrained into the system. It is not surprising therefore that the establishment of the JAC has made its Chairwoman remarked that its institution is “a quiet revolution” and one of the “fundamental, historical changes brought about by the Constitutional Reform Act of 2005.” Together with other changes brought about by the said Act like the reform of the Office of the Lord Chancellor and the “establishment of the Lord Chief Justice as the head of the judiciary of England and Wales,” 3 Baroness Pushar called its establishment as the most important to happen in the British legal world since the Magna Carta.(2006). The Need for a Judicial Appointments Commission Even before the turn of the century, the need for a complete revamp of the judiciary appointment system in UK had already been recognized. As was pointed earlier, this began to take root after the Nolan Committee issued its report. Immediately after, the Department of Constitutional Affairs came out with a consultation paper of the proposed establishment of a Judicial Appointments Commission. The introduction to the said paper was made by the Lord Chancellor himself. According to him, there is a need to institute an independent body which shall be tasked with the selection and appointment of the members of the judiciary and this need is primarily to gain public confidence in the dispensation of justice in the country (1997). In the aforesaid Paper, it was observed that the need for a body like JAC stemmed from many sources. For one, the performance of the British judiciary as well as its selection and appointment method have come under scrutiny and criticisms questioning the fairness and judiciousness of the process and whether the then existing processes were adequate to meet the needs of the public and the judiciary itself. And then there is the Nolan Report which recommended that additional reforms were to be made to supplant the efforts of the Lord Chancellor at that time because they were inadequate to offset the already well entrenched condition of “inertia and complacency at the highest level of the legal profession” and which recommended that a commission be created. A A survey made by the Lord Chancellor of several members of the Bench and legal experts indicated that there was a concern for the lack of transparency which may lead to a “self-perpetuating oligarchy of judiciary.” In addition, the total reliance on the process of consultation 4 or the “secret soundings” was attacked as “amateur” because it lacks the necessary fullness to ferret out the best candidates for the judiciary positions. The consulted judges may not have been exposed to all the legal practitioners especially those employed as barristers and solicitors and may not be in the best position to declare who are best for the position. The perception that the judiciary did not reflect the make-up of society was also a concern. The fact that only a small percentage of women and members of the ethnic groups were able to penetrate the judiciary was a testament of the “old boys’ club” mentality (Lord Chancellor 1997 pp11-13). The book Constitutional and Administrative Law pointed out the need for the separation of powers of the judiciary and the executive in the light of the integration of the provisions of the European Convention on Human Rights into domestic law. Since the aforesaid provisions necessarily pit the rights of citizens vis-à-vis public bodies, there was a pressing need to make the judiciary as independent as possible from the influences of the executive. And this independence, according to Hilary Bennett, starts with the appointment process (2004). This was an opinion that was shared by Lord Falconer of Thoroton, the Lord Chancellor, who said “In a modern democratic society, it is no longer acceptable for judicial appointments to be entirely in the hands of a government minister. For example the judiciary is often involved in adjudicating on the lawfulness of the actions of the Executive. And so the appointment system must be, and must seen to be, independent of Government” (Prashar 2006). The British appointment system where the Lord Chancellor is the ultimate appointing power suffered from lack of the judicial independence. This was a problem that was illustrated in Starrs & Chalmers v. Procurator Fiscal [2000] UKHRR 78, a case that originated in Scotland where the effectivity of the Human Rights provisions came before that of England (Bennett, Taylor and Francis Group 2004). Starrs & Chalmers v. Procurator Fiscal [2000] UKHRR 78 5 The issue at stake in this case is whether or not the temporary nature of a judge’s position is incompatible with the requirements under the European Convention on Human Rights that a fair trial, inter alia, should be presided over by an independent and impartial tribunal where that judge’s tenure is entirely at the discretion of the Judge Advocate. In this case, a summary complaint was being heard by the Sheriff’s Office. The accused Starr and Chalmers raised a “devolution issue” when their case appeared before a temporary sheriff on the ground that the sheriff’s tenure was temporary and therefore was a violation of their right under the Convention to have their case heard by an independent and impartial judge. In Scotland, temporary sheriffs are appointed by the Secretary of State in the event of dearth of permanent sheriffs to handle the efficient administration of justice. However despite the statutory power of the Secretary to appoint temporary sheriffs, it is really the Lord Advocate, by practice, who drew up a list of qualified applicants and sends his choices to the Scottish Court Administration for the formal appointment. Likewise, by practice, it is the Lord Advocate who can rule on the reappointment or the “sidelining” of a temporary sheriff. Under Article 6(1) of the Convention, the right of an individual with respect to an impartial trial is stated as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The court in considering whether there was independence and impartiality of the sheriff in this case cited the case of Findlay v. United Kingdom [1997] 24 EHRR 221. In that case it was held that “In order to establish whether the tribunal was ‘independent’, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.” 6 Moreover, where impartiality is concerned the same court held that there are two aspects of this term: “First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.” It was the finding of the court in this case that the Lord Advocate, through the Procurator Fiscal, violated the rights of the accused under the Convention when he decided to proceed with the case notwithstanding the devolution issue raised by the accused. Criticisms Leveled Against the JAC Barely one year into their commission as the super-body appointing office of the judiciary, the JAC was heavily criticised for ‘obstructing’ in the dispensation of justice. In July of 2007, an acute shortage of judges was observed resulting in the delay of resolving criminal cases which implied delay of justice as well as the overcrowding of prisons. A number of top officials likewise voiced their concern over this matter. The Lord Chief Justice, Lord Phillips of Worth Matravers, as well as the most senior family judge of Britain, Sir Mark Potter were some of those who worried of the effects of the long delays in the appointments of judges Gibbs 2007). In Anita Rice’s report in the Law Gazette dated September 13, 2007, she recounted that during a constitutional affairs select committee meeting, a spate of criticisms were leveled off against the newly constituted body. In addition to the delay in the selection of judges, which some reports said took eighteen months, the JAC was also criticised for its unfair treatment of solicitors usually women, blacks and minority ethnic applicants. The issue was that JAC gave preference to barristers over the solicitors (2007). 7 The former chairwoman of Law Society’s law reform board herself, Alexandra Marks, remarked that the JAC has failed to capitalize on its power to eradicate a traditional system which was biased against solicitors. Albeit that JAC had been, during its short existence, appointing solicitors to the Bench, they were appointments at the junior district and deputy district judge levels and none whatsoever at the recorder level. The said level was considered a “stepping stone to senior judicial appointment.” In addition, the exclusion of applications from master and district judges to the senior judge posts is noticeable. According to the Law Society, the masters and district judges are the only judicial groupings where there are more solicitors than barristers. Of these, 26% are women and 3.1% BMEs (Rice 2007). A circuit judge observed, that if a district judge is disqualified for the recorder level, then the JAC has failed its purpose which of reforming the system. The same practice, according to him, of the senior judicial posts being reserved for the same people like in the old system is still around (Gibb 2007). Criticisms were not also spared by the women judges in the upper echelon of the judiciary. Mrs. Justice Dobbs, a member of the ethnic minority who have managed to be appointed as one of the ten High Court women judges, commented that despite the creation of JAC the ratio of women appointees to the judiciary remains unsatisfactory, echoing other women judges’ view that despite efforts at diversifying appointments to the judiciary the nature of women appointees remained unchanged (Gibb 2007). Achievements: The 2006-2007 JAC Report In its report to the Parliament for the year 2006-2007, the JAC outlined its achievements so far from the time of its creation on April 3, 2006 to July 2007, some of which this paper cite below. 8 First on the list is its completion of all transitional Department of Constitutional Affairs selection exercises. It has, so far, received 2000 applications; the selection Committee has “dealt with 18 reserve list vacancies”; it has published and used merit and good character policies; it has developed, published and implemented good character guidance; it has established the Selection and Character Committee; it has implemented the precedent book which is being used as a reference of character decisions made. JAC has likewise made an assessment of the existing methods of evaluating merit and has since developed and published new processes of assessing merit; since October 91, 2006 JAC has been using all processes it introduced; it guaranteed that these processes are of quality even assigning Commissioners during selection processes; the documentation for the selection processes have been reduced and redrafted; it launched qualifying tests as an alternative method of shortlisting and how they should be implemented;. It is working closely with the Lord Chancellor and has established a tripartite agreement with him and the LCJ. Thus it regularly makes Commissioner visits in the regions; it has completed a programme of outreach events, publication of articles and speeches; JAC has put up many exhibition stands in many events; it has accomplished the awareness of the public of new processes; has successfully pushed for individual marketing plans advertised in the multi media in bilingual modes. Moreover, the JAC has increased the number of applications to the different positions in the judiciary. This was made possible through the publication of e-letters every month which subscription has considerably increased; the increase of its website hits from 4,318 to 26, 289 in the last quarter of 2006; in Wales, documentation regarding vacancies and applications have been translated to Welsh, and; the undertaking of a roadshow advertising for candidates. 9 In the move to effect a diversified judiciary the JAC likewise entered into a tripartite agreement with the LC and LCJ. It has drafted a single equality scheme; its Commissioners have attended several diversity events, and; it has completed a manual of new selection process which stresses equality. To eliminate unlawful discrimination in the judiciary regarding age, gender, disability, race, religion, beliefs and sexual orientation, the JAC has audited Steel House under the Disability Discrimination Act and has published the Reasonable Adjustment Policy. With regards to complaints elevated to the body, it has investigated Charter Mark, it has dealt with complaints leveled against and published a mechanism for the filing of complaints against it. Conclusion: Recommendation It has been barely two years since the Judicial Appointments Commission has been created. Leveling unfair criticisms against a newly formed body which has to grapple with transitional issues - not to say the overhauling of a system which has been so well entrenched in the British legal system that it is almost an institution in itself - is counterproductive. What is vital for JAC today is building its fundamentals. This is rudimentary. For a building to sustain and maintain its structural integrity through the years, its foundation must be strong. So, while JAC must open itself to criticisms that will constructively aid in its foundation building, it must reject those that will unwittingly divert it from its purposes and goals. It must not forget the purpose of its existence which is to change the old system of “old boys club” which based appointments to the judiciary on the “whom you know basis Neither should JAC capitulate to the demands that it must appoint women and EMBs to augment the present women population in the judiciary for that purpose alone. The judiciary is a sacred institution because of its ultimate role in society which is the fair and judicious dispensation of justice. People appointed to the ranks must be so appointed because they are the 10 crème de la crème in the legal field and not because they belong to the minority. Women and the members of the minority should be appointed only if they are deserving of the position on the basis of the merit system alone. Gender and ethnicity are not what is in issue here but rather the competence and skill of the applicant. So while JAC must be blind to gender, color, religion and beliefs, it must be so for all people – whether man or woman, white or black, minority or not. Anent the criticisms on the slow appointments of judges causing a shortage, the JAC must make an effort to remedy the situation without sacrificing the quality of its work. After all, the maxim “justice delayed is justice denied” is always true. Baroness Pashar must, instead of fretting over and constantly parrying criticisms, institute a system that will maximise the Commission’s time and effort to select and recommend applicants to the Bench. A scrutiny of the old appointment system would reveal that not everything about it is bad. The fact for instance that many of the previous appointees to the Bench are people of high competence despite the rather dubious method of the process is not being disputed.. The recommendation process for example, where senior judges recommended legal practitioners they know to be competent and right for the job is not an abhorrent practice if done right and in the open. A mixture therefore of individual applications and recommendations by competent members of the judiciary or any legal organizations is ideal to bring out the best people for the job. However, the Commission must not rely solely on the recommendations but do its own job of real investigation into the ability and competence of such recommended persons. The Commission must therefore take in stride all the criticisms against it for there are those who firmly believe in what they are doing. In the words of Geoffrey Vos, Chairman of the Bar, the Commission “had only been in place a very short time. It was producing criteria that, over time, would produce a ‘diversity of appointments’ and it was ‘going broadly in the right direction’” (Gibbs 2007). 11 Works Cited Barnett, Hilaire A. Constitutional and Administrative Law. Cavendish Publishing, 1995. Constitutional Reform Act of 2005, The . Office of Public Sector Information. The National Archives. http://www.opsi.gov.uk/acts/acts2005/ukpga_20050004_en_1#Legislation-Preamble Freeman, Michael D. Current Legal Problems 2000. Oxford University Press, 2000, p 126. Gibb, Frances. Judicial Appointments Commission: what does its first report card say? June 25, 2007. http://business.timesonline.co.uk/tol/business/law/article1984466.ece Gibb, Frances. Ministers Are Blamed for Shortage of Judges. Times Online. September 10, 2007. http://business.timesonline.co.uk/tol/business/law/article2419385.ece Gibb, Frances. Taps on the Shoulder Make Way for Job Applications. April 4, 2006. Times Online.. http://business.timesonline.co.uk/tol/business/law/article700779.ece JAC. Annual Report 2006/07: Committed to Selection on Merit. 4 July 2007. http://www.judicialappointments.gov.uk/docs/JAC_AR2006_07.pdf Lord Chancellor. Judicial Appointments Commission: A Consultation Paper. 1997. Department of Constitutional Affairs. http://www.dca.gov.uk/constitution/reform/draftconsult.pdf Prashar, Usha Baroness. Judicial Appointment: A Quiet Revolution. November 6, 2006. Middle Temple Guest Lecture.JAC.. http://www.judicialappointments.gov.uk/docs/Middle_Temple_Guest_Lecture.pdf 12 Rice, Anita. Opportunity knocks. 13 September 2007. LawGazetter.co.uk. http://www.lawgazette.co.uk/features/view=feature.law?FEATUREID=358853 Starrs & Chalmers v Procuarator Fiscal. [2000] http://www.bailii.org/cgi-bin/markup.cgi?doc=/scot/cases/ScotHC/1999/242.html&query=title+(+Starrs+)+and+title+(+Chalmers+)+and+title+(+v+)+and+title+(+Procurator+)+and+title+(+Fiscal+)&method=boolean Weir, Stuart & Beetham, David. Political Power and Democratic Control in Britain. Routledge. 1999. Read More