The Government requested an inquiry into the system for judicial appointments, Sir Leonard Pelch, a senior civil servant undertook the task. The report was published in 1999. Leonard was quite happy with the quality of the work and the professionalism of the civil servants involved in the appointments process. One of the key recommendations be made, was that a Commissioner for Judicial Appointments should be appointed to provide independent monitoring of the procedures for appointing judges and Queen’s Counsel. This recommendation was taken on board by the Government and the first Commissioner was appointed in 2001. Sir Leonard Peach did not recommend any changes to the secret soundings system.
The Constitutional Reform Act 2005 passed which contained provisions for the establishment of a Judicial Appointments Commissions responsible for a new judicial appointments process. Under schedule 12 of the Act, the Commission has 14 members: five lay members, five judges, and two legal professionals, a tribunal member and a lay magistrate. The members are appointed by the Queen on the recommendation of the Lord Chancellor. Candidates must be selected on the basis of merit and be of good character. Part 2 of the Tribunals, Courts and Enforcement Act 2007 contains provisions to try to increase the pool of lawyers eligible to become judges.
Under the 2007 Act, eligibility is no longer based on the number of years candidates have had rights of audience before a court, but instead of their number of years post-qualification experience. The number of required years experience has been reduced from seven to five years and ten to seven years, depending on the seniority of the judicial office. Following the 2007 Act the Lord Chancellor has issued regulations stating that the qualification of a legal executive is sufficient for judicial appointment in the magistrate’s courts and tribunals.
Government lawyers are now allowed to become judges, these lawyers are employed in the Crown Prosecution Service, Serious Fraud Office and the Government Legal Service. They are able to sit as civil recorders which are part time judges and deputy district judges in the magistrates court, provided their own department is not involved in the case. This is a major development, as such lawyers have a wider range of backgrounds, with women and ethnic minorities well represented and the majority state educated. Their recruitment as junior judges will hopefully make the profession at this level more representative of society but it is not clear that there is any real justifications for not making the more senior judicial posts open to these lawyers.
In performing its functions the Judicial Appointments Commission mush have regard to the need to encourage diversity in the range of persons available for selection. It is allowed to encourage people it believes should apply for judicial posts to apply. The Minister is able to issue guidance which the Commission must have regarded to. This guidance can include directions on expanding the diversity in the judiciary.
The Commission evaluates candidates and recommends, on the buss of merit only, one individual for each vacancy. The Minister cannot choose somebody who has not been recommended to him or her by the Commission. He or she is, however able to ask for a candidate who is not initially recommended by the Commission to be reconsidered, and can refuse the appointment recommend and ask for a new name to be put forward. The Minister has the ability to reject a candidate once, and to ask the Commission to reconsider once. Having rejected once, the Minister must accept whichever subsequent candidate is selected.
There is special provision for the appointment of the Lord Chief Justice the heads of Division and the Lord Justices of Appeal. The Commission establishes a selection panel of four members, normally consisting of two senior judges (One being the Lord Chief Justice) and two lay members of the Commission.
The Appointments of the Lords Justices and above are still being formally made by the Queen on the advice from the Prime Minister, after the Commission has made a recommendation to the Minister, provisions are continued in the constitutional Reform and Governance Bill which if passed, will remove the role of the Prime Minister altogether.
When it comes to appointing judges in the Supreme Court, the Minister will appoint a temporary Commission. This Commission includes the President and Deputy President of the Supreme Court, as well as one member of each of the three judicial appointing bodies of England and Wales, Scotland and Northern Ireland. The temporary Commission will put forward two to five candidates to choose from. The Minister will then consult with the senior judges, the first Minister and deputy First Minister in Northern Ireland. The Minister will then decide on the candidate and tell the Prime Minister who will then recommend this candidate to the Queen.
The Commission for Judicial Appointments has been abolished, a Judicial Appointments and Conduct Ombusdsman now oversees the recruitment process and has the power to investigate individual complaints about judicial appointments.
Judges are most of the time white, made and seem to be of the middle to upper class and mostly elderly leading to accusations that they are unrepresentative of, and distanced from, the majority or society. In 1985 80 percent of Lords of Appeal, Heads of Division, and Lord Justices of Appeal and High Court judges were educated at Oxford or Cambridge. Over 50 percent of the middle ranking circuit judges to Oxbridge but only 12 percent of the lower ranking distract judges. Eighty percent of judges appointed since 1997 were educated at a public school.
