With the enactment of the Constitutional Reform Act 2005
With the enactment of the Constitutional Reform Act 2005, the Judicial Appointment Commission (JAC), which is the principal body responsible for most judicial appointments, was officially launched on 3 April 2006. It is responsible for soliciting applicants for judicial vacancies and evaluating the merits of candidates for posts, before putting forward a nominated candidate for confirmation or rejection by the Lord Chancellor. Under s29 of the Constitutional Reform Act 2005, the Lord Chancellor can reject a candidate once or ask the commission to consider once but a written reason for this must be given. The power of the Lord Chancellor in the role in the appointment process is clearly limited and the Judicial Appointment Commission’s choice of candidates to fill the vacant posts will generally stand. For any candidate to be considered for appointment to a judicial post, however, certain qualification must be satisfied.
The qualifications for being a judge are all set out in statute. They fall into two categories. Firstly, the qualifications for any potential judge must be able to satisfy. Under s63 (3) of the Constitutional Reform Act 2005, judicial appointees are required to be of ‘good character’. The Judicial Appointments Commission has set out guidelines for this, which including the consideration of the criminal convictions, insolvency history and disciplinary records of the candidates. To assess candidates for vacancies, five core qualities and abilities for judicial office has also been identified by the Judicial Appointments Commission. These consist of intellectual capacity, personal qualities, an ability to understand and deal with fairly, authority and communication skills and efficiency.
Historically, most judicial appointments were restricted to barristers, the exception being registrars in the country court. Since solicitors have always had rights of audience in country court, they have always been eligible for the lower levels of the judiciary. The Court and Legal Services Act 1990 based eligibility on rights of audience. As part of the government’s attempt to diversity the judiciary, the Tribunals, Court and Enforcement Act 2007 amends the minimum eligibility requirements to stipulate that an applicant must satisfy the ‘judicial appointment eligibility condition’.
In addition, the 2007 Act made a number of changes to the eligibility requirements, including removing the existing link between eligibility for judicial appointment and possession of advocacy rights; providing for the extension of eligibility for some appropriate appointments to holders of legal qualifications other than barristers and solicitors; introducing a requirement that a person with a relevant qualification must also have gained legal experience to be eligible for office; and reducing the number of years for which it is necessary to have held the relevant qualification and gained legal experience. The majority of the changes appeared to have been introduced to encourage diversity in the judiciary.
As mentioned above, diversity in the judiciary has been an issue of concern for some years. The composition of the judiciary is regularly subject to criticism on the grounds of disproportionately white, male, middle class and middle aged. The 2004 consultation paper assumed such statistic demonstrated that only 3% of judges came from ethnic minority groups despite the fact that ethnic minorities accounted for 8% of population in UK. The gender imbalance within the judiciary is also evident. On the other hand, women held only 16% of judicial post in 2004, even though the population is approximately split evenly by sex. For senior posts, only 9% of the positions were being hold, which were very less represented. Judges at the higher levels, tend to come from the upper levels of society, with many having been educated at public school and nearly all attending Oxford University or Cambridge University. Having considered the statistical evidence, it is difficult to refute the commonly held perception of the lack of social diversity.
“Society must have confidence in that the judiciary has a real understanding of the problems facing people from all sectors of society with whom they come into contract… We must ensure that our judicial system benefits from the talents of the widest possible range of individuals in fairness to all potential applicants and to ensure that the talent, wherever it is , is able to be appointed.” Many have argued that the imbalance in the judiciary warps the administration of justice itself. For instance, Pannick argued “the quality of judicial performance would be improved if more of the bench enjoyed the experience peculiar to more than half the members of our society”. Besides, Hewson, the Association of Women Barristers, listed examples of gender bias in judicial and tribunal decisions, such as existed in the US, where the National Judicial Education Programme identified three types of gender bias. First, stereotypical thinking about the nature and role of men and women. Second, how society values women and men and lastly, the myths about the social and economic realities of women’s lives.
On her appointment as the first female lord, Baroness Hale spelled out why the judiciary needed more women. Quoting Canadian Chief Justice Beverley McLachlin, she argued that it would promote public confidence; be symbolic, as the judiciary are required to promote equality and fairness; be a sound use of human resources, tapping the intellectual qualities of the missing part of the population and bring a different perspectives to judgement. For cultural, biological, social and historic reasons, women’s experience was so different. As a result, “the present judiciary is disadvantages but means well. Few of any are actively misogynist or racist but they have a lamentable lack of experience of having female or ethnic minority colleagues of equal status”. The authors of the collection Feminist Judgements demonstrate the potential difference by writing “missing” judgements in key cases in the English Legal System. Professor Hunter argues that we need affirmative action to broaden our judiciary.
The major concern over the unrepresentative composition of the judiciary is that it threatens to undermine public confidence in the judicial system.