Judicial Diversity

Judicial Diversity

The Judiciary is a central arm of government that is charged with the role of interpreting as well as applying allows. The Judiciary promotes the peaceful coexistence of societies by resolving disputes, convicting offenders and ensuring there is the upholding of the rule of law. It is thus prudent to maintain the independence of the Judiciary. The following paper will examine both the history and the independence of the UK judiciary[1]. There will also be an evaluation of the impacts of the CRA 2005 and ways it impacted on the Judiciary. For many years, the United Kingdom Judiciary has been reliant and influenced by the executive. The situation means that there is no proper separation of powers among the arms of government[2].

Nonetheless, pressure for local groups saw the introduction of the Constitutional Reform Act 2005. The purpose of the Act was to minimise the grip of the executive on the operations of the Judiciary. Previously, most of the judicial appointments were made by the executive. However, the authorities were not keen on addressing the needs of the muscular populace. It is was a way of addressing the legal hurdles and needs in the 21^st century. Before discussing the CRA 2005, it is critical to focus on the limitations of the old system. Under the Old judicial systems, senior state and political figures determined the appointment of judicial officials.

The Lord Chancellor in the United Kingdom had the author of appointing both District and judges and Lay Magistrates[3]. There were no laws or regulations that were to guide the process. On the contrary, the Lord Chancellor used the method he deemed fit. Additionally, the Lord Chancellor also advised the UK queen on the appointment of HC judges, District judges and Circuit Judges.  On the other hand, the District Judges and the Recorders played a central role in the appointment of the Law Lords.  Both the Head of Divisions and Court of Appeal Judges operated under the counsel of the Lord Chancellor. The above scenario points out that there is the concentration of judicial power on a single political figure, the Lord Chancellor.

The above situation further indicates that there are inefficiencies in the separation of power, thus creating the risk of cronyism and bias in the administration of justice. Moreover, there lacked clear guidelines and laws that checked the conduct of the Lord Chancellor. It implies that there were inconsistencies in the selection of different judicial officials. It further meant that the Lord Chancellor could not be entirely held accountable for inefficiencies in the appointment process[4]. Another shortcoming was in the absolute immunity of the judges, which meant that they could not be held accountable for malicious or fraudulent activities.

The appointment process was equally inadequate in accommodating the high number of legal professionals in the country. The number of solicitors in the United Kingdom was growing hence the call for the restructuring of the Judiciary[5]. A report by Lord Irvine in 2000 pointed to the growing resentment and dissatisfaction in the selection and appointment processes. The increasing pressure from these groups prompted the introduction of the Constitutional Reform Act of 2005. The Act saw the creation of the Judicial Appointments Committee. It was charged with the role of selecting and interviewing all potential candidates. The selected individuals are then to be forwarded to the Lord Chancellor for appointments[6].

Unlike the previous systems, it tends to encourage application from diverse groups in the United Kingdom. It states that all the selection process for the candidates must be based on merits. The applicants must thus be individuals of good character and strong calibre to execute the judicial functions[7]. The move saw an increase in the number of professionals in the Judiciary.  There were significant efforts to address ethical and gender inequalities in the appointment processes. There has also been the restraining of the powers of the Lord Chancellor in the selection of judges. Currently, the LC has minimal powers or ability to reject the candidates that are selected by the judicial appointment committee[8].

On the other hand, in cases where there is the need for a new Justice of the UK Supreme Court, the Act calls for the creation of a special Selection Committee. The equipment seeks to minimise the influence of both the guarantees and the Lord Chancellor in the selection of the head of the Judiciary. The provision has been cited as being instrumental in promoting transparency, accountability and openings in the Judiciary. The argument rests on the fact that the Judiciary is no longer dominated by the executive as it was the case in the previous years.

The creation of the Judicial Appointment Committees further minimised the ministerial influence in judicial duties[9]. However, there is the argument that the retention of the powers of the Prime minister in the appointment of judicial officers erodes the efforts to support its independence. After its formation and implementation in 2006, the Act strived to meet all the statutory requirements in the separation of powers[10]. However, there were shortcomings in blending the changes with the judicial tradition, thus leading to criticism. Despite these shortcomings, the parliament opposed any attempt to make additional changes within such a short time. One of the major successes of the process has been accommodating professionals from different ethnic, religious and racial backgrounds. Gender and ethnic inequalities have been reducing since the introduction of the Act[11].

From the outlined information, it is apparent that the 2005 Act came in handy in enhancing the efficiency of the Judiciary. Although there are still major issues that need to be addressed, the institution has become more open and transparent as compared to the initial years. The shift from the old systems can be linked to the conflict of interest in the selection process. Both the Prime Minister and the Lord Chancellor had a tight grip in the appointment process. The situation was despite the fact that they belonged to the executive arm of the government. The recommended the judicial officials that were to be appointed by the queen. However, the 2005 Act saw the introduction of the Judicial Appointment Commission. Although there are still issues that need to be resolved, it is also true to state that the independence of the UK judiciary has been enhanced by the 2005 Constitutional Reform Act.

References

Cases

Nill

Legislation

Constitutional Reform Act of 2005

The Supreme Court of Judicature Act of 1873

The Supreme Court of Judicature Act of 1875

EU

Charter of Fundamental Rights of the European Union (2000)

Secondary Sources

Davies, Gregory. “The legitimising role of judicial dialogue between the United Kingdom courts and the European Court of Human Rights.” PhD diss., Cardiff University, 2017.

Delaney, Erin. “Searching for constitutional meaning in institutional design: The debate over judicial appointments in the United Kingdom.” International Journal of Constitutional Law 14, no. 3 (2016): 752-768.

Malleson, Kate. The new Judiciary: The effects of expansion and activism. Routledge, 2016.

Nehushtan, Yossi. “The True Meaning of Rationality as a Distinct Ground of Judicial Review in the United Kingdom Public Law.” Israel Law Review 53, no. 1 (2020): 135-158.

Richardson, Genevra, and Maurice Sunkin. “Judicial review: questions of impact.” In Administrative Law, pp. 219-243. Routledge, 2018.

Wood, Diane P., Chilton Davis Varner, and Douglas R. Young. “Judicial Oversight of Covert Action in the United States and the United Kingdom.” Judicature 100, (2016): 35.

[1] Constitutional Reform Act 2005

[2] Wood, Diane P., Chilton Davis Varner, and Douglas R. Young. “Judicial Oversight of Covert Action in the United States and the United Kingdom.” Judicature 100, (2016): 35.

[3] Davies, Gregory. “The legitimising role of judicial dialogue between the United Kingdom courts and the European Court of Human Rights.” PhD diss., Cardiff University, 2017.

[4] Malleson, Kate. The new Judiciary: The effects of expansion and activism. Routledge, 2016.

[5] The Supreme Court of Judicature Act of 1873

[6] Constitutional Reform Act 2005

[7] Delaney, Erin. “Searching for constitutional meaning in institutional design: The debate over judicial appointments in the United Kingdom.” International Journal of Constitutional Law 14, no. 3 (2016): 752-768.

[8] The Supreme Court of Judicature Act of 1875

[9] Davies, Gregory. “The legitimising role of judicial dialogue between the United Kingdom courts and the European Court of Human Rights.” PhD diss., Cardiff University, 2017.

[10] Charter of Fundamental Rights of the European Union (2000)

[11] Nehushtan, Yossi. “The True Meaning of Rationality as a Distinct Ground of Judicial Review in the United Kingdom Public Law.” Israel Law Review 53, no. 1 (2020): 135-158.