Before this appointments were made on the recommendation of the Lord Chancellor, who was a Government Minister. The Lord Chancellor’s Department made its own enquiries as to the most eligible candidates. It was considered that the appointment process was open to the criticism that a member of the government should not have the sole responsibility for appointing judges. It was also considered that judges were appointed in the image of existing judges rather than solely on merit from a pool of widely drawn eligible candidates.
Despite the criticisms levelled at it the former method of appointment in fact worked rather well. Candidates were selected on merit, there was no question of any political consideration being involved, and the Lord Chancellor usually acted on the advice of the senior judiciary, who were in a position to identify able practitioners. Selection was, however as critics pointed out, from a rather narrow pool and this did nothing for the diversity of the judiciary.
It was considered that, while judges should be appointed on merit, if we are to have a judiciary that has the confidence of citizens, it must fairly reflect all sections of society that are in a position to provide candidates of the requisite ability. The new system of selection seeks to encourage such candidates to come forward. All appointments are made by open competition. The Commission recommends candidates to the Lord Chancellor, who has a very limited power of veto. The Commission also has a specific statutory duty to “encourage diversity in the range of persons available for selection for appointments”. In this way it seeks to widen the pool of candidates who are then appointed on merit. There are judges on the Judicial Appointments Commission, but they are not in the majority, do not act in a representative capacity, and the Commission is chaired by a layperson.
- The Judicial Appointments Commission
- Constitutional Reform: a new way of appointing judges – Department of Constitutional Affairs (Consultation Paper) (July 2003)
- Peach – An Independent Scrutiny of the Appointment Process of Judges and Queen’s Counsel in England and Wales (London, 1999)
- Brennan – The Selection of Judges for Commonwealth Courts (Canberra, 10 August 2007) (Senate Lecture Series)
- Malleson & Russell (ed), Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World, (University of Toronto Press) (2006)
- Malleson, The New Judiciary: The effects of expansion and activisim, (Ashgate) (1999)