Judges are perceived by two-thirds of the general public as being out of touch. They are seen as being “old, white and male, reflecting the values of a privileged elite”. According to research by Hazel Glen cited in Broadening the Bench, only 53% of people thought they would get a fair hearing if they went to court and many thought the courts served the interests of the wealthy.
There are no women out of the dozen judges in the House of Lords – three out of 35 in the Court of Appeal and 8% in the High Court of Justice. There are no ethnic minority judges at High Court level or above. Very senior judiciary are not reflective of society. With a few notable exceptions, the senior judiciary lacks women, ethnic minorities, solicitors and academic lawyers: people with the knowledge, expertise and experience that could be valuable in judicial posts.
These weaknesses spring from the narrow base from which judges are recruited and obscure recruitment methods. While the appointment of a Judicial Appointments Commission to provide feedback to candidates and to deal with complaints of discrimination is welcome, this would not deal with the whole problem. The need for judges to have relevant expertise and experience is even more important in view of the greater role judges are now expected to play in the conduct of cases.
The system used in Ontario is highly regarded. The Judicial Appointments Advisory Committee (JAAC) has a lay majority and is expected to be geographically representative. The experience of civil law countries is also relevant, because their judges have long dealt with constitutional issues similar to those facing the UK judiciary as a result of the Human Rights Act and devolution.
Research from Germany, the Netherlands, France, Spain, Italy and Portugal shows that judicial appointment bodies in each country include judges and non-judges.
Research for the Lord Chancellor’s Department considered that judges appointed by
such bodies showed independence from their governments and the numbers of women, ethnic minorities and people of non-traditional education tended to increase.
In most jurisdictions, academic lawyers are appointed to the judiciary, especially to appeal and constitutional courts.
While several recommendations made by Sir Leonard Peach designed to produce a fair and impartial system have been accepted, it appears that decisions on appointments to the High Court and above will be largely determined by formal meetings every six months of the Lord Chancellor, the Lord Chief Justice and other Heads of Division. This is likely to recreate the present system of soundings at the end of the appointments process.
A Judicial Appointments Commission, independent of the Government, reflective of the population at large and including lay members should be appointed to deal with all levels of appointments to the bench and to tribunals.
It would make appointments from a pool of suitably approved candidates including academic lawyers and lawyers in employment. All appointments would require the approval of the commission, whether directly or under delegated authority.
A Judicial Advisory Committee, which should have a similar composition to the commission and include one or two if its members, would select the pool of candidates, develop the means to attract applications from under-represented groups and monitor and consult on the development of judicial careers.
This would ensure judges were chosen from a diverse pool of lawyers, while ensuring that those appointed have the expertise and experience relevant to the court or tribunal to which they were allocated. They would help to reassure people that the judges had more awareness of the realities of their lives and rebuild confidence in the judiciary and the courts.
Dr Margherita Rendel is a member of the Women’s Issues Group of the Society of Labour Lawyers.
The big question
