Judicial appointments process flawed, says new report.
27 Tuesday Mar 2012
Updated: Judicial appointments are under the spotlight this week, with the publication of two reports examining the current appointments process. The first, ‘Guarding the Guardians’ by Chris Paterson and Professor Alan Paterson, was published yesterday by the liberal think-tank CentreForum. The second, the report from the Lords Constitution Committee inquiry into reforming the judicial appointments system, will be published on Wednesday*.
‘Guarding the Guardians’, does not pull any punches, arguing that the current appointments system is “not fit for purpose”. In particular, the authors take issue with the current definition of ‘merit’ used in making appointments, “the concept of merit . . . has become associated with one very specific (and contestable) understanding of individual ability – a phenomenon recently described by Lord Falconer as the ‘top ten’ of legal brilliance”. The authors argue that this individualised definition of merit means that appointments are made with little consideration of the effect of an appointment upon the collective competence of the Court, or of gaps in specialities of the court. This selection process is at odds with most standard models of selection:
“In a company, team or collective organisation of any kind it would seem unusual to focus exclusively on the individual abilities of a potential member without any consideration of their impact on eth collective whole. Yet this is, it seems, the approach largely taken for appointments to the collective body that is the ultimate arbiter of law in the UK.”
The authors then go on to tackle diversity, arguing that too often diversity is perceived as being separate, and sometimes directly oppositional, to merit. In reality, “by recognising that the needs of the collective body must be placed at the centre of appointments to that body, it becomes clear that diversity and merit are directly aligned, and, indeed, inextricably linked.”
As ever, it is the suggestions regarding diversity which are likely to be the most controversial. Indeed, the report summary written by the two Patersons in The Guardian has already started off a lively stream of comments, the majority of which argue that the Court will become more diverse in time as more candidates ‘trickle up’ the system. However, the authors do point out that those who predicted 20 years ago that the senior judiciary would become more diverse through the trickle up process have been proved wrong. Furthermore, how long are we prepared to wait for the process to take effect?
The report’s main suggestions are a redefinition of the concept of ‘merit’ which would allow greater flexibility in appointments (as Joshua Rozenberg points out, “by removing the flexibility inherent in the wide discretion formerly exercised by the lord chancellor, the reforms have actually made diversity harder to achieve”), and a change in the appointments process. Instead of the current system, where input from 26 individuals (21 of whom are judges) is required, senior appointments should be made by a panel of nine people: three senior judges, three parliamentary members and three lay people.
The past few years have a seen a constant stream of reports on judicial diversity, judicial appointments and the judiciary in general. All have come to broadly the same conclusion: the judiciary is too old, too male and too white. Future reports are likely to conclude the same. But few recommendations for change have been put into practice so far. It is to be hoped that this report, added to the report from the Lords Committee, may provide some impetus to get the ball rolling for reform.
* The committee report has now been published, and you can read it here. Unsurprisingly the report came to the conclusion that the judiciary is, you guessed it, too white, too old and too male. The reports recommend that the judiciary should be more diverse abd better reflect society, which would improve public confidence in the judicial system. The select committee suggests that judges have more flexible working practices and career breaks, and for part-time posts on the bench. Merit should still be the sole criterion for selecting judges, but: “We do not consider that the concept of merit should be narrowly focused on intellectual rigour”. The report also suggests that appointments panels should include laypersons.