Tuesday, October 24, 2006

Judicial Appointment Commission - ELS

Question 3b: 2004 - Zone A

The government is proposing to establish a Judicial Appointment Commission in England and Wales. Why was it thought necessary to reform the judicial selection process and should such a Commission have the power to appoint judges or merely to make recommendations?


The judiciary system is at the end of the day a service industry that must serve the purpose of the people." This statement was made by Mr. Austin Mitchell at the parliamentary debate on the Constitutional Reform Bill 2004.

It is fundamental that a judiciary system must be seen to be fair, just and an efficient administration of justice without partiality or prejudice and that it ensures every citizen have equal access to the law.

In the proposed Constitutional Reform Bill 2004, Clause 1 places the importance of judges to be independent and free from the influence of ministers especially cases involving a citizen and a government body. Ministers have a duty not to seek influence particularly judicial decision through any special cases to the judiciary.

Traditionally, the Lord Chancellor and the Prime Minister in Uk have the exclusive nominal control over the appointment of judges to the judiciary.

Professor Griffith has two views regarding the selection and appointment of judges. The first view is that the appointment of the judiciary is wholly in the hands of the politicians, which may lead to political cronyism in the selection process.

As an example, during the premiership of Lord Salsbury, there was the practice of making legal appointments and promotion as a reward for political 'right thinking'.

Secondly, Griffith is of the view that judges by their training and upbringing have acquired a strikingly homogeneous collection of attitudes, belies and principles which to them represents the public interest. However, judges may be impartial but then they are not neutral.

In the view of Griffith, the composition of judges do not reflect the social composition of the general population.

In the parliamentary debate on the Constitutional Reform Bill, Mr. Fraser, MP, voiced the concern that judges should be more representative of the communities that they serve. In his words, "judges are not masters of the community; they are its servants."

There was generally concern of the lack of women appointed to the judiciary, although they constitute the majority in the UK society. Similarly, there are also concerns of the lack of appointment of black people and other representatives of ethnic minorities.

Another concern is the number of appointments today which is now so much greater than when the system was traditionally under the control of the Lord Chancellor.

The overriding principle of the Constitutional Reform Bill pertaining to judicial appointments would be the independent and efficient administration of justice. There are also other targets and criteria which should be given to a judicial appointment commission who are capable to conduct them in a way that are free from political control.

The Commission for Judicial Appointment (CJA) which was first established in October 2000 was seen to be ineffective to solve the problems mentioned above. It was largely held that this body was merely a 'Half-way House' that does not have the power to select judges. They merely gave their opinion and the decision and appointment of judges was entirely left to the Lord Chancellor.

In response to these criticisms, the government has now set up the Judicial Appointment Commission (JAC) under the Constitutional Reform Act 2005. Under JAC, selection of judges shall be based solely on merits and that the selecting body must be satisfied that the appointee is of good character.

Literally, the power of appointing judges has now been taken away from the hands of the Lord Chancellor and placed on the Commission. However, the Lord Chancellor may issue guidance about procedures for the performance by the Commission relating to the functions of identifying persons willing to be considered for selection and assessing such persons for the purpose of selection. Before issuing any guidance, the Lord Chancellor must consult the Lord Chief Justice.

The next question arise is whether such a commission (JAC) should be empowered to appint judges or to merely make recommendations. As the main objective and the overriding principle of setting up such a Commission was to ensure that the system are independent and efficient in the administration of justice, at such, if the proposed set up of the JAC could ensure that they are capable to conduct their administration in a way that was free from political control, and that those selected as judges are based on their merits and are person of good character, then it would have fulfilled the objective. The question of who to recommend or select judges thus do not arise.

To ensure that the system is efficient and fair, the judicial system must be made accountable to the representative of the people. If the syystem are accountable to the House of Commons, we will see a better and more adequate system.

So long as appointment of judges are subjected to independent scrutiny and the selection body are seen to be independent of politics, and are transparent, the judicial system would be directed to the fair and efficient administration of justice without partiality or prejudice.

2 comments:

rose said...

Awesome master pieces - you bear the throne of jurisprudence

Elmina Kenley said...

Good work Law Essay