Judicial appointment in the United Kingdom has been criticized pre enactment of the Constitutional Reform Act 2005, the Lord Chancellor plays a central role in appointment of the judges. It was a very secret sounding process. The judicial appointments commission was able to curb these shortcomings , as it established a more transparent selection process. The appointment of judges emphasised on merit and to establish a judiciary with various races . An Advisory Panel on Judicial Diversity, Baroness Neuberger is the chief , making 53 recommendations for progressing the objective of achieving a more diverse judiciary. Judicial diversity taskforce in charge of ensuring steps taken to establish a more racially various judiciary are effectively executed. The Crime and Courts Act has imposed an obligation on the Lord chancellor and chief justice to found a judiciary with various racial backgrounds.
Before the Constitutional Reform Act 2005 the appointment of judges was a process managed by the Lord Chancellor , head of the judiciary. The whole process was a “tap on the shoulder.” 3 Judges who were generally of similar backgrounds but they tend to be mainly of stereotypical characteristics . Graduates of Oxford and other ivy league Universities figured largely among the appointees. Most had been barristers and the majority had been appointed Queen’s Counsel. 4 Significant number of women came to practise law but only a few of the are actually appointed as judges at High Court or above and, only one has become Justice of the Supreme Court. There was no wide spread information given to other possible candidates as to the vacancy available in the judiciary, clearly illustrating the lack of diversity within judicial appointment at the time.5
The Constitutional Reform Act 2005 has established a Judicial Appointments Commission . The Act holds that selection can only be done “solely on merit” s.63 of the Act but, by s,64, the JAC should give importance to increase diversity in the scope of persons considered for appointments therefore looking at a wider scope of lawyers . The Lord Chancellor provides guidance in relation to a choosing individuals to be considered and for assessing such persons and the guidance will address diversity issues. Vacancies in judicial post are now widely publicised and applicants are involved in tests such as selective test and role play to assess their judicial abilities.6 In the whole process there is importance given on diversity. In an article in the Gazette of law society written by , Baroness Prashar chairman of Judicial appointment commission gives us a in depth analysis into the steps taken to increase other minorities within judiciary. Improvement is being made on diversity and striving to maintain excellence within the judiciary. 7
Judicial appointments commission systematic method of selecting judges.8 For example the commission has identified five generic qualities the qualities are intellectual capacity the ability to absorb and analyse information, personal qualities of judges should include sound judgement, decisiveness and others. Ability to understand and deal fairly this is the willingness to hear the line of arguments with a calmness and project respect and authority in decision making. These are qualities that all candidates applying for a judicial post must possess , there exists a fifth quality efficiency the ability to work fast under pressure which needs to exists in judges who are applying for more senior roles.9
The judicial appointment process broken down the Courts service or Ministry of Justice makes a vacancy request to the judicial appointments commission it is then advertised by the JAC , the JAC receives application forms and sifts them for eligibility and good character a shortlist of potential candidates is then made by reviewing the submitted paper work which may include a qualifying test.10 . The interviewing panel then report back to the JAC , the commission will provide brief reports on candidates likely to be assessed for selction of the judicial roles to the Lord Chief Justice and to another person who has held the post or has relevant experience.. The JAC will then make a final report to the Lord Chancellor.11
House of Lords constitution committee produced a report on judicial diversity , the report includes statistics showing that in 2011 only 5% of judges were of races including Black and Asian ethnics.
The percentage of female judges in the judiciary was 22 %. The Committee stated that diversity includes a number of other elements including disability, sexual differences, legal and social background and were against any idea that those from less represented groups are low quality candidates or that a diversified judiciary would cause the quality of our judges to fall The committee stated that a more diverse judiciary would improve public trust and confidence in the justice system. 12
8. Rebecca Huxley- Binns (2014) Unlocking The English legal System, (4th edition ) 314
9. ibid 314-315
10 Rebecca Huxley- Binns (2014) Unlocking The English legal System, (4th edition ) 314- 315
11. Ibid 317
12 House of lords constitution committee (2011) (Inquiry into the judicial appointment process,) ;https://www.barcouncil.org.uk/media/53493/lsc_response_to_house_of_lords_constitution_committee_040711;
Gains which would be served had there been more diveristy in the appeal court committee . This was a question posed by the HOL constitution committee to the only female judge in supreme court, she stated substantive decision making would be different if the composition of the committee had more women in it. Lady Hale replied ” the same conclusion was reached by the female judges but with a different way of viewing the problem at hand and they were alos scenarios where a totally different decision was reached but with equal success .13 ” Cases where diversity in the judiciary may have resulted in a different outcome include the case of Radmacher v Granatino SC 2010, the case concerned the appellant was against the decision giving enforcement to the ante nuptial agreement on his application for ancillary relief. The action failed however Lady Hale was of a dissenting view 8-1 , she considered the fact that the undue influence or pressure the wife in the ante- nuptial agreement must have been under and was she reasonably aware of her financial situation if the agreement had effect. The circumstances in which the agreement was made were so tainted that it should be given limited weight.1 She was the only there was only one female judge in the committee a different decision may have been obtained had there been more,in this particular case this is the view taken by some legal experts in the field the judgement of the case would be different from a feminist point of view.1
Recommendations made by the HOL constitution committee to ensure there are judges based from various races . People of immense legal background and powers such as the Lord Chancellor and Chief Justice should be initiating the need for diversified judiciary. Candidates being selected based on merit should continue however the application s.159 of The Equalities Act 2010 should be encouraged reason being it introduces the significance of variety in decision making when two judges are of equal merit to judicial appointments.1The working hours within the judicial roles should be made less rigid to ensure more female judges apply for judicial posts and othe people with multiple purpose in life.17Important bodies such as the State and judiciary should initiate the importance of a diversified judiciary they should be the main advocates for it. There is no intended percentage of variety within the judiciary set by the commission plans are being made to introduce such a figure in the near future.18
However it is not easy to achieve judicial diversity when there is norms to the judicial career which cannot be apprehended by society for example women may not be able to deal with the long working hours which a judge will have to deal with.19 Further by opening the applications for judicial role for non- barristers may lead to the appointments of incompetent judges and lead to miscarriages of justice, provide a statutory basis for judicial diversity task force. 20
Conclusively, it can be held that the road to make the judiciary more diverse is a long one it is not only the task of the JAC to increase diversity in the judiciary but also relevant bodies such as the Government and Lord Chancellor.21 It concerns not only the relative bodies but the relevant ethnic groups to have the interest in a judicial post, however pressure groups pushing for more diversity within the judiciary must understand that the diversity within judiciary must not come at the cost of miscarriage of justice. Therefore a balance has to be struck between diversified judiciary and execution of justice.22