SEMESTER TWO
JUDICIAL APPOINTMENTS
- Lord Atkin famously said that the judges were becoming ‘more executively minded than
the executive’
- Pre-CRA 2005:
- Lord Chancellor played central role in appointments
- COA and above → recommendation of PM to Monarch acting on the advice of
the Lord Chancellor
- High Court and Below → recommendation of Lord Chancellor directly to
Monarch/directly by the Lord Chancellor
- Most Public Law cases are against the government, and the Lord Chancellor has played
a crucial role in the appointment of all these important judges
- Three main arguments for changing this system:
- Judicial independence → crucial to separation of powers and the rule of law
- Transparency → those already on the bench would promote those who they
already knew, which meant there was no transparency, BUT now there is more
as vacancies for judges are advertised
- Lack of diversity → most judges are old white men
- Trickle up thesis (this never happened) - judges are still not very diverse
at all
- Case for judicial diversity
- Advisory Panel on Judicial Diversity:
- Equality of opportunity
- Judiciary should reflect the diversity of society
- Wide range of backgrounds and life experiences
- Visible reflection of society will mean more public confidence
- Judges in Favour of Diversity:
- Bertha Wilson (first SC Justice in Canada):
- Told to ‘go home and take up crochet’ when applying to law school
- Male judges tend to adhere to original beliefs about men and women, so
female judges and lawyers can bring new opinions to the table and make
a difference in the decision making process
- Sonia Sotomayor <333:
- Disputed the idea that a wise man and a wise woman would reach the
same decision
- Experiences and background will influence the way in which the judge
rules
- David Lammy MP:
- Better judgements when you move beyond a monocultural judiciary
- Baroness Brenda Hale <3333:
- First female justice in the UKSC
, - Gave judgement in Miller/Cherry
- Ketanji Brown Jackson US SC <33:
- First black female justice in the Supreme Court (we have no black justices
in the Supreme Court in the UK - neither male or female)
- Attacked for defending terror suspects in Guantanamo Bay during her
hearing
- Options for Change:
- Elected judges → causes problems as it means the judgements will be decided
by the electorate as opposed to the judge - aka in Texas a judge MUST run on a
political platform
- Parliamentary approval of executive nominee (federal level in the US) → also
problematic as gets political again
- Judicial appointments commission like in Canada and South Africa
- CRA 2005, Changes:
- Creates a Judicial Appointment Commission for selecting appointments to courts
of England and Wales (NOT UKSC)
- Composition: lay chair, 5 judicial, 5 lay, 2 lawyers, 1 tribunal, 1 magistrate
- Senior Appointments by JAC appointed selection panel (4 members: 2 lay, 2
judicial) (lord chancellor is consulted for this)
- Options of the Lord Chancellor following selection:
- Accept
- Reject or ask for reconsideration, but there must be written reasons and
they can only do this twice
- S63 (merit and good character)
- S64 (encouragement of diversity)
- Not much has happened since 2005 essentially
- Crime and Courts Act 2013:
- UKSC appointments
- Diversity tie-break
- Flexible working
- Encouraging diversity applies to LC and LCJ
- LC power transfer to LCJ/Senior President Tribunals for appointments below the
High Court
JUDICIAL APPOINTMENT TO THE UKSC:
- Until 1399 both Houses of Parliament heard petitions to reverse lower court judgements
- In 1399 → HoC stopped hearing petitions
- 1844: a convention was developed so that lay people could no longer vote (after a case
in which non qualified people disagreed with the qualified law lords)
- 1876: appellate jurisdiction act and then in 1948 the appellate committee was
established (first example of physical separation) → law lords moved their decisions to a
separate room for the first time
JUDICIAL APPOINTMENTS
- Lord Atkin famously said that the judges were becoming ‘more executively minded than
the executive’
- Pre-CRA 2005:
- Lord Chancellor played central role in appointments
- COA and above → recommendation of PM to Monarch acting on the advice of
the Lord Chancellor
- High Court and Below → recommendation of Lord Chancellor directly to
Monarch/directly by the Lord Chancellor
- Most Public Law cases are against the government, and the Lord Chancellor has played
a crucial role in the appointment of all these important judges
- Three main arguments for changing this system:
- Judicial independence → crucial to separation of powers and the rule of law
- Transparency → those already on the bench would promote those who they
already knew, which meant there was no transparency, BUT now there is more
as vacancies for judges are advertised
- Lack of diversity → most judges are old white men
- Trickle up thesis (this never happened) - judges are still not very diverse
at all
- Case for judicial diversity
- Advisory Panel on Judicial Diversity:
- Equality of opportunity
- Judiciary should reflect the diversity of society
- Wide range of backgrounds and life experiences
- Visible reflection of society will mean more public confidence
- Judges in Favour of Diversity:
- Bertha Wilson (first SC Justice in Canada):
- Told to ‘go home and take up crochet’ when applying to law school
- Male judges tend to adhere to original beliefs about men and women, so
female judges and lawyers can bring new opinions to the table and make
a difference in the decision making process
- Sonia Sotomayor <333:
- Disputed the idea that a wise man and a wise woman would reach the
same decision
- Experiences and background will influence the way in which the judge
rules
- David Lammy MP:
- Better judgements when you move beyond a monocultural judiciary
- Baroness Brenda Hale <3333:
- First female justice in the UKSC
, - Gave judgement in Miller/Cherry
- Ketanji Brown Jackson US SC <33:
- First black female justice in the Supreme Court (we have no black justices
in the Supreme Court in the UK - neither male or female)
- Attacked for defending terror suspects in Guantanamo Bay during her
hearing
- Options for Change:
- Elected judges → causes problems as it means the judgements will be decided
by the electorate as opposed to the judge - aka in Texas a judge MUST run on a
political platform
- Parliamentary approval of executive nominee (federal level in the US) → also
problematic as gets political again
- Judicial appointments commission like in Canada and South Africa
- CRA 2005, Changes:
- Creates a Judicial Appointment Commission for selecting appointments to courts
of England and Wales (NOT UKSC)
- Composition: lay chair, 5 judicial, 5 lay, 2 lawyers, 1 tribunal, 1 magistrate
- Senior Appointments by JAC appointed selection panel (4 members: 2 lay, 2
judicial) (lord chancellor is consulted for this)
- Options of the Lord Chancellor following selection:
- Accept
- Reject or ask for reconsideration, but there must be written reasons and
they can only do this twice
- S63 (merit and good character)
- S64 (encouragement of diversity)
- Not much has happened since 2005 essentially
- Crime and Courts Act 2013:
- UKSC appointments
- Diversity tie-break
- Flexible working
- Encouraging diversity applies to LC and LCJ
- LC power transfer to LCJ/Senior President Tribunals for appointments below the
High Court
JUDICIAL APPOINTMENT TO THE UKSC:
- Until 1399 both Houses of Parliament heard petitions to reverse lower court judgements
- In 1399 → HoC stopped hearing petitions
- 1844: a convention was developed so that lay people could no longer vote (after a case
in which non qualified people disagreed with the qualified law lords)
- 1876: appellate jurisdiction act and then in 1948 the appellate committee was
established (first example of physical separation) → law lords moved their decisions to a
separate room for the first time
