By Sir Andrew Ridgway, a commissioner Judicial Appointments Commission
– At this point you may be expecting mention of Magna Carta; but 2015 is also the anniversary of another complex constitutional settlement. It is 10 years since the Constitutional Reform Act (CRA) 2005 was passed, an Act which gave greater effect to the doctrine of separation of powers – providing for a new and more transparent relationship between the executive, the legislature and the judiciary. This Act reformed the office of Lord Chancellor and established the Lord Chief Justice as head of the judiciary of England and Wales. It was also under this Act that the Judicial Appointments Commission was established to take responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and to make the appointments process clearer and more open, transparent and accountable.
The JAC began to operate in April 2006 and for nine years has been selecting judges for courts and tribunals across England and Wales, and for some tribunals whose jurisdiction extends to Scotland or Northern Ireland. This includes High Court judges, Presidents of Tribunals and the full range of judicial roles in the Crown and County courts as well as the tribunals. The Commission also plays an important part in the selection of the Lord Chief Justice, the Senior President of Tribunals and the Heads of Division, as well as the Lords Justices of Appeal.
Prior to the CRA, judges were appointed by the Lord Chancellor after ‘secret soundings’ had taken place within the legal community. Under the CRA, the Lord Chancellor retains the power to appoint judges, but he or she is required to appoint judges selected by the JAC, subject to a limited power to reject or ask for a reconsideration of a recommended candidate. As for the ‘secret soundings’, the CRA contained a requirement for ‘statutory consultation’ with the Lord Chief Justice and another relevant judge, but these views became less critical for gaining information about applicants as the JAC developed a selection process involving the collection of evidence from many sources including an application form, references, a variety of different tests and an interview.
As a Non-Departmental Governmental Body (NDPB) the JAC is reviewed regularly to ensure that its governance and accountability are strong, and that it continues to perform its essential function and do so effectively. The JAC was reviewed last year under what are known as ‘triennial reviews’. The resulting report was published earlier this year and said:
“The JAC has established itself as a universally respected part of the constitutional landscape, bolstering judicial independence and supporting the business of the courts and tribunals.”
The report also described the JAC as ‘critical to the rule of law’. It concluded that the JAC should explore whether it could expand its remit in terms of senior, international and quasi-judicial appointments – the authority for which is within the CRA – thereby promoting the international rule of law; and also whether it could move to a more commercial model of charging Government departments and other bodies for the work done on their behalf.
This endorsement of the Commission’s work is already bringing new business to its doors. Over the past year the JAC has been asked to advise and assist in the selection of a Senior Magistrate and Chief Justice for the Falkland Islands; President, Justices and Deputy Justices of the Court of Appeal for St Helena; and a Judge of the General Court of the European Union.
The JAC is now working on clarifying and expanding the assistance it may provide in the future for these appointments and intends to involve key stakeholders in this project. An important element of this work will be ensuring there is a level of consistency between the JAC selection processes and those of the organisations and countries that are being supported. However, the JAC’s primary work will remain the selection of judges for courts and tribunals in England and Wales, and for some tribunals with a UK-wide jurisdiction.
The JAC has also had visitors from across the globe who have been interested to learn about its selection processes. In the last couple of years the JAC has spoken to representatives from a wide range of countries including Albania, Australia, India, Japan, Kurdistan, Nigeria, South Africa, Spain, Thailand and Vietnam. It is hoped that, in a small way, the JAC is helping to promote the rule of law internationally and that it is further enhancing the already high esteem in which the British judiciary is held around the world – not least for its independence.
To return to Magna Carta, this was arguably the first of many Acts of constitutional importance. Another is the Act of Settlement 1700 which secured the independence of the judiciary. It is well known that Magna Carta was subjected to a great deal of reform – within only 10 weeks it was annulled and then was reissued around 50 times over the next 200 years. Now, only three of the clauses remain part of English law.
The CRA has also been reformed. Just two years ago the Crime and Courts Act 2013 and associated regulations were introduced with the aim of further improving the efficiency, transparency and diversity of judicial appointments. The Commission now determines the process for selecting lawyers to be authorised as deputy High Court judges – a valuable experience for those aspiring to a permanent position on the High Court bench. The JAC has also worked with the Vice President of the Criminal Division of the Court of Appeal to develop an independent process for the appointment of Circuit Judges to that court – another valuable experience for those with aspirations to work in more senior courts. For positions below the High Court, the JAC is no longer required, under statute, to consult two judges with relevant knowledge of the judicial vacancies of the candidates it is minded to select. This ‘statutory consultation’ can be with one judge and for some vacancies no statutory consultation may be necessary at all. The Act also brought in the requirement for there to be a lay chair for the panels selecting for the most senior roles – President of the Supreme Court and Lord Chief Justice; and ensured a better balance of lay and judicial influence in these decisions.
Independence in selection is essential to show that the way judges are chosen is truly independent of the executive, and that the judiciary is not recruiting in its own image. A core aspect of ensuring this independence is the statutory requirement for the JAC to make only one recommendation for each vacancy. The majority of Commissioners are not judicial members – there is a lay Chairman, six lay members (including a lay magistrate), six judges, and two professional members. Parliament decided there should be a wide range of experience around the table when decisions are being made. Consensus is invariably achieved although you can assured that there are robust exchanges.
This independence of selection also increases the status of the judiciary in the eyes of the population. That said, judges bring vital experience and knowledge to the selection process and their involvement is essential. They are used throughout the process in devising and developing tests and role plays; by sitting on panels for sifts and interviews; by providing references; taking part in statutory consultation; providing representation on the Commission; and by speaking at outreach events.
It is ultimately all about striking the right balance. The feedback in the Triennial Review and the high level of international interest that the JAC is attracting, gives confidence that the JAC is getting it about right in terms of providing a model of selecting judges from the widest range of professionals in a manner that is demonstrably independent. It is questionable whether the CRA will ever reach such a great anniversary as Magna Carta, but hopefully at least some of you have been persuaded that it is another Act of constitutional significance worthy of discussion in the same article.