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The thorny issue of appointing judges

16 Feb 2023

| Author: Professor Leslie Thomas KC

How judges should be appointed is often one of the most contentious issues in constitutional law. In some countries, the executive and/or the legislature play a decisive role in appointing judges. Federal judges in the United States are nominated by the President and confirmed by the Senate. An even more striking feature of the American system is that many state court judges are elected.

Conversely, in other countries, judges are nominated by an independent commission designed to be insulated from politics. Many commonwealth countries have a constitutional body called a Judicial Service Commission to advise the head of state on the appointment of judges.

The composition of these commissions varies considerably from country to country but they usually include judges and some non-judicial members. Some include members of the legislature, while others do not. At the most extreme end, there are some countries where the appointment process is wholly controlled by existing judges. This is the case with the “collegium” system for appointments to the Supreme Court of India.

Each of these options has advantages and disadvantages. Where judges are appointed by elected politicians, this ensures some level of democratic involvement in the process. But it also increases the likelihood that party political considerations will play a role in judicial appointments and that judicial decisions will be affected by political considerations.

Similarly, where judges are elected, they are democratically accountable but this also increases the risk that they will seek to make popular decisions instead of correct ones and that they will be beholden to the private interests which bankrolled their election campaign.

On the other hand, where the appointment process is independent and dominated by existing judges, this reduces partisan influence. But such systems can also be criticised on the ground that they turn the judiciary into a self-selecting elite which is not democratically accountable to the public.

Radical changes

So how does it work in England and Wales? There were radical changes to judicial appointments in the early 2000s. Before then, the key figure in judicial appointments in England and Wales was the Lord Chancellor. The Lord Chancellor occupied an anomalous position: he was simultaneously a politically appointed Cabinet minister, the head of the judiciary and the speaker of the House of Lords.

Most judges were appointed by the Queen on the advice of the Lord Chancellor. Some senior judges were appointed by the Queen on the advice of the Prime Minister but the Prime Minister in turn would consult the Lord Chancellor.

There was no formal recruitment process. Judicial vacancies were not advertised and there was no open competition. The process was often described as a “tap on the shoulder”. Although this might sound like a politically partisan process, it was mitigated to some degree by the fact that the Lord Chancellor would always consult senior judges on judicial appointments and that the judges’ views generally carried significant weight.

But this came with some problems of its own. Most judges were drawn from wealthy backgrounds, had attended fee-paying schools and were white and male. There was inevitably a temptation to appoint judges who fitted the same mould as existing judges.

How far did political considerations influence judicial appointments in practice? In Victorian and Edwardian times, the answer was “quite a lot”. For example, Lord Halsbury, who was Conservative Lord Chancellor for three periods between 1885 and 1905, was well-known for appointing Conservative politicians and even his own relatives to judicial roles, regardless of merit.

In a 2009 lecture, Lord Justice Toulson, as he then was, said that “[b]efore the First World War, judicial appointments were highly political and frequently made with scant regard for whether the person showed any sign of having judicial qualities,” although he acknowledges there was a “marked improvement” between the First and Second World Wars. At that time, there was also a convention that the Attorney-General, the government’s politically appointed chief law officer, would be offered the office of Lord Chief Justice when it fell vacant.

Lord Toulson highlights that this convention led to the appointment of Lord Hewart, who was Lord Chief Justice from 1922 to 1940 and who was “widely regarded as the worst Lord Chief Justice of the twentieth century”. His poor performance led to the end of this convention.

More positively, however, Lord Toulson says that “[b]y the second half of the twentieth century, there were few instances where political factors were suspected of influencing the judicial appointment process and certainly none in the last 30 years. In recent decades all Lord Chancellors were scrupulous in seeing that the judicial appointment process was strictly apolitical.”

Chris Hanretty of the University of East Anglia has carried out a statistical analysis of all judicial appointments in England between 1880 and 2005. Among the factors he looked at was political affiliation. He found that there was no advantage to having the same political affiliation as the incumbent Lord Chancellor, but that judges were more likely to be promoted if they had been appointed by a government of the same party.

So by the end of the 20th century, there was no longer a strong perception that political partisanship influenced the judicial appointment process. However, there were still undeniable difficulties with the process. The “tap on the shoulder” system was the opposite of an open and transparent recruitment process. As Lord Toulson states, “there was a double complaint: that the selections were made in the image of the selectors, resulting in an over-narrow judiciary, and that the process was hidden from public view.”

Open competition

Under New Labour, there were significant changes. In 2001 the Commission for Judicial Appointments was created, although this was an oversight body and was not directly responsible for recruiting judges. However, the Constitutional Reform Act 2005 brought about a sea change. The Judicial Appointments Commission, an independent statutory body, was established. For the first time, judges were selected on the basis of open competition and had to apply for their jobs.

The principle that judges should be selected on merit was enshrined in statute. The commission consists of a mix of judicial members, lawyer members and lay members. So it is not completely controlled by the existing judiciary but they play a major role in it.

The 2005 Act also made several other changes to the English judicial system. The role of Lord Chancellor was radically reformed, so the Lord Chancellor was no longer the head of the judiciary or the speaker of the House of Lords. Today the Lord Chancellor, who is always also the Secretary of State for Justice, is normally an MP rather than a peer and does not even have to be a lawyer. And the Act replaced the Appellate Committee of the House of Lords with the UK Supreme Court.

The Lord Chancellor now plays much less role in judicial appointments than previously. Judges of lower courts and tribunals are appointed on the recommendation of the commission. Until 2014 the Lord Chancellor was still formally the appointing authority for judges of lower courts and tribunals, although in practice they simply rubber-stamped the candidate selected by the commission. The Crime and Courts Act 2013 removed even this residual role, so that the Lord Chief Justice and the Senior President of Tribunals are now the appointing authorities for lower courts and tribunals respectively.

Although the Lord Chancellor continues to be involved in the appointment of the higher judiciary, his discretion is very limited. High Court judges are appointed on the recommendation of the commission. The most senior judges, including the Lord Chief Justice, the Master of the Rolls, the Heads of Division and the Lords Justices of Appeal, are appointed on the recommendation of selection panels appointed by the commission. The Lord Chancellor does have power to reject the commission’s recommendation or request its reconsideration, but these options can be exercised only twice in relation to a given vacancy.

Highly controversial

This removal of ministerial influence from the process has not been uncontroversial. In 2009 Jack Straw, then Lord Chancellor in the Labour Government, requested reconsideration of the Commission’s recommendation to appoint Sir Nicholas Wall as President of the Family Division. Sir Nicholas had previously been critical of the government’s reforms to the family justice system. When the commission recommended him for a second time, Straw had little choice but to acquiesce.

In analysing this case, Professor Graham Gee argues that the Lord Chancellor should have a greater role in appointments. He says, “Ministerial involvement can inject a substantial degree of democratic legitimacy and accountability into the selection regime—and, by extension, into the judiciary as an institution of government.” He argues that instead of having to accept or reject a single name, the Lord Chancellor should be able to choose from a shortlist of between three and five names prepared by the commission.

We can see, then, that the question of how judges should be appointed is highly controversial. If the selection process is dominated by the existing judiciary, this may produce a more independent judiciary but some argue that it also produces a judiciary which is wholly unaccountable to the public. Conversely, if the selection process has a significant degree of political involvement, this might be said to make the process more democratic but it might also make it more partisan and reduce its independence from the government of the day.

Accountability

In England and Wales, judges are supposed to enjoy judicial independence and a major component of that independence is that it is difficult to remove them. For the senior judiciary, at High Court level and above, it is virtually impossible to remove judges from office against their will. They can be removed only by the King on an address by both Houses of Parliament.

No English or Welsh judge has ever been removed through this process; the only time it was ever used was when Sir Jonah Barrington, a judge of the Irish High Court of Admiralty, was removed in 1830 for corruption. This does not mean they are completely unaccountable. A judge who loses the confidence of his or her colleagues may be pressured to resign.

For example, in 1998 Mr Justice Jeremiah Harman was harshly criticised by the Court of Appeal for failing to deliver judgment in a civil case for 20 months. Harman was already a controversial character, who was frequently accused of rudeness and discourtesy to barristers who appeared before him, particularly women, and was criticised for kicking a taxi driver in 1992 under the mistaken apprehension that he was a press photographer.

After being criticised by the Court of Appeal, Harman resigned. But had he refused to resign, it would have been very difficult for his colleagues to get rid of him. On the other hand, judges below the level of the High Court can be removed by the Lord Chancellor with the concurrence of the Lord Chief Justice. There is also a power to suspend them from office. So they have significantly less security of tenure.

Security of tenure

Like judicial appointment, judicial tenure and accountability is an intensely controversial subject. Traditionally, in liberal democracies, security of tenure for judges has been viewed as an important safeguard against political interference with their decisions. In fact, total insecurity of tenure is likely to breach the requirement of Article 6 of the European Convention on Human Rights that cases be tried by an “independent and impartial tribunal”.

On the other hand, a critic of the judiciary might ask whether the senior judiciary, given their virtually absolute security of tenure, are accountable to anyone except themselves. That said, security of tenure doesn’t mean judges can do whatever they like. Judicial conduct complaints are dealt with by the Judicial Conduct Investigations Office, or JCIO. And in fact, at times the JCIO has been accused of overreach.

For example, Peter Herbert, a well-known black lawyer who sat as a part-time recorder and tribunal judge, had a complaint of misconduct made against him in relation to his comments at a rally in April 2015. At the rally, Herbert spoke out against racism in the judiciary. Eventually, in 2017, a JCIO panel held that his speech was misconduct and was “likely to undermine public confidence in the judiciary”.

The panel held that he should be given “formal advice”. It also held, however, that he should receive an apology because pressure had been put on him to refrain voluntarily from sitting as a judge, which should not have happened. Herbert later brought a race discrimination claim in the Employment Tribunal against the Lord Chancellor and the Lord Chief Justice, which in 2021 was settled without an admission of liability.

That brings us on to another important question: how representative is the judiciary of society as a whole? Traditionally, as I have said, the English and Welsh judiciary has been dominated by white men who attended fee-paying schools and Oxbridge. This has been a subject of much discussion in recent years.

In England and Wales, minoritised ethnic people constituted 10% of all judges in 2022, which was 3 percentage points higher than in 2014. However, this representation was not evenly distributed across the judiciary. In the senior judiciary, at High Court level and above, only 5% of judges belonged to minoritised ethnic groups. Conversely, 12% of tribunal judges belonged to minoritised ethnic groups.

For comparison, minoritised ethnic people constituted 16% of barristers and 18% of solicitors, though their representation generally fell with increasing experience and seniority. Women make up 35% of all court judges and 52% of all tribunal judges. Based on these statistics, you might think judicial diversity in the lower levels of the judiciary isn’t too bad. But the statistics also show a huge disparity in the appointment process.

In 2021-22, ethnic minority candidates accounted for 23% of applications for judicial posts, but only 11% of those recommended for appointment. And the statistics don’t tell the whole story. We don’t have detailed statistics about the social and economic background of current judges, for instance.

While the 2022 statistics contain a breakdown of how many of those recommended for appointment in 2021-22 attended a state school and were the first in their family to attend university, they do not include this information in respect of judges currently in post. This is very important. A black man from a wealthy background who went to Eton won’t have the same life experiences as a black man who grew up on a council estate and attended a state school.

‘Woeful’ under-representation

Another important consideration that isn’t reflected in the statistics is the professional experience of appointees, and how this has shaped their attitudes. Although the statistics tell us how many solicitors and barristers are appointed, they don’t tell us what kind of law they practised or on whose side.

The outlook of a legal aid lawyer who has made a career out of representing the oppressed is often very different from that of a commercial lawyer who represents large companies, or Treasury Counsel who represent the government.

My experience is that the most senior judicial appointments, at High Court level and above, disproportionately go to lawyers who have spent their careers representing the powerful, rather than the powerless.

And some other groups are woefully under-represented. For example, transgender people, whose lives are often profoundly impacted by litigation amidst the current climate of anti-trans hostility, have little representation in the judiciary.

So we don’t have a judiciary that is representative of the public. And we’ve looked at many of the common criticisms of judges, as well as many of the common counter-arguments. But what are the alternatives? ■

Next week: Do we truly need judges? And what role might they play in a fairer and more equal society? ■

Professor Leslie Thomas KC is a lecturer at Gresham College in central London

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