Introduction

The basic theme of this essay is whether or not the current composition of the judiciary is conservative and, if so, whether a decision handed down by a judge from a non-conventional background is likely to be different from that which would have been handed down under the current composition, assuming the current composition is an unrepresentative conservative one. In order to do this, this essay is divided into three parts. Part one will introduce the common law system in an attempt to provide a background to the discussion that will follow. The second part will then deal with whether or not the current composition of the judiciary is unrepresentative of the society and, if so, the possible reasons for that. Finally, a discussion will be undertaken as to whether the Constitutional Reform Act 2005 (‘the 2005 Act’) has made the judiciary more representative. Whether or not the improvements made are satisfactory will also be dealt with. A conclusion will be provided to bring the discussion to an end.

The Common Law

To investigate this subject properly it is necessary to first understand some key features of the common law. In an historical sense the common law is the body of rules developed by the king's judges in England.[1] However Cotterrell argues that the common law is a set of general principles employed in a specialised form of legal reasoning or methodology.[2]  In that sense the common law is separable from the particular rules in force and is therefore fluid and adaptable through time.

Blackstone, in attempting to define the role of judges in the common law system, has declared that the judges are “depositories of the laws, the living oracles, who must decide in all cases of doubt.”[3] Thus the role of judges is essentially apolitical, with no scope for the application of personal political convictions to the resolution of legal disputes. Modern formulations of judicial decision-making, however, tend to reject the declaratory theory of law, adopting a more realistic approach and recognizing the role of judges in making the common law.[4] The general view appears to be that judges may need to step in and make new laws where it is necessary to fill the gaps left unfilled by the legislator.

However, this power should be used cautiously. It would be a fatal act for the judiciary to overstep the line and enter the realms of decision making, or seem to be so acting. That is a power, which should and is reserved for elected officials who act on behalf of the electorate and have mandate to do so. To do the opposite would diminish the respect and reputation of the judiciary in the public eye and may cause legislative reforms aimed at reducing the discretion afforded to the courts, thus lacking the courts the power to do what is just in the circumstances. It is obvious that if unjust results cannot be avoided in the absence of discretion afforded to judges, the reputation of the judiciary is likely to suffer as much, if not more. This explains why Lord Radcliffe was at pains to highlight the danger of an interventionist and law making judiciary. His Lordship famously expressed that “…[judges]…do not want to run the risk of finding the archetypal image of the judge confused in men's minds with the very different image of the legislator.”[5] He was aware that the public recognition of the judicial role in law making has far-reaching and potentially unsettling implications. His Lordship was right in suggesting that public confidence in the independence of the judiciary would be undermined if it were openly acknowledged that judges make laws.

The question one must ask himself is this: to what extent are the decisions of the judiciary affected by their personal political convictions? If it is accepted that judges do in some cases make laws, it is only logical to expect those decisions to be affected by the personal political beliefs. One cannot, for example, reach a judgment whether or not a certain act is or is not what a reasonable men would have done without having an idea as to what attributes a reasonable men has or, in some cases, should have. Case law has shown us that this term is an excellent example of how personal background of a judge affects his or her perception of certain issues.[6] This issue is explored in greater depth in the next part.

The culture of judiciary is by nature conservative

It is possible to construct a critique of the judiciary as being essentially political. For example, J.A.G. Griffith in his book “The Politics of the Judiciary” argues that “judges in the United Kingdom cannot be politically neutral because they are placed in positions where they are required to make political choices which are sometimes presented to them, and often presented to them, as determinations of where the public interest lies”.[7] Griffith develops his argument by making reference to the typical social profile of the English judiciary, and to their social outlook. In Griffith's view these two facts are related. Referring to the senior officers of the English judiciary, (these being the members of the Court of Appeal and the House of Lords (now the Supreme Court)), Griffith points out that “judges have by their education and training and the pursuit of their profession as barristers acquired a strikingly homogenous collection of attitudes, beliefs and principles, which to them represent the public interest.”[8] Griffith does not argue, however, that judges pursue the interests of the government of the day. On the contrary, judges have security of tenure. They are therefore institutionally free to pursue their own conception of the public interest. According to Griffith, this view of the public interest comprises three broad sets of beliefs regarding: (i) the fundamental supremacy of the interests of the state in any competition with individual rights, (ii) the primacy of the need to maintain law and order in society, and (iii) the judges' view on the social and political issue of the day.[9]

The criticism that judicial reasoning is necessarily political has certain commendable features. It reminds us that the act of judging must have political consequences because judges are regularly and necessarily placed in a position where the interests of the state and of citizens are adjudicated. Griffith also advances a sociological argument regarding the composition of the judiciary which reminds us that judges are not representative of the people and have no or only a qualified democratic legitimacy, and are likely to hold conservative views.

However this is of limited significance and is really no more than a statement of the obvious. The crucial issue is whether judges make decisions for political and not strictly legal reasons, which really comes down to the question of the extent to which judges are free to make choices between competing legal principles based on view of public policy, community values and social utility. This is a question of great difficulty and complexity and with an enormous literature.[10] One of the solutions that can remedy this problem and the main focus of this paper is more diversity in the judiciary. If members of the judiciary are asked to adjudicate on political matters thus necessitating the need for them to weigh up two competing arguments advanced, and in some cases those arguments are politically motivated, it is only reasonable to assume that their decisions are, to some extent, based on their own political stance. A more diverse judiciary would prove useful in ensuring that all members of the society and political views are represented as well as bringing in the view of the particular judge, which may be drastically different to that of other judges selected to serve. It is therefore unsurprising to read the following speech made by Lord Falconer, the then Lord Chancellor, where he said that judicial diversity “makes a real and positive difference to the administration of justice.” [11] Having established that the judiciary is not diverse, the crucial issue, which now requires consideration, is whether the diversity of the judiciary is actually attainable or a theory that is impossible to apply.

The Reforms

The 2005 Act introduced groundbreaking reforms intended to secure judicial independence and diversity. Firstly the Act has severely minimised the Lord Chancellor’s involvement in the selection and the choice in the appointment of judges. The selection process is now bestowed upon the Judicial Appointments Commission (‘the Commission’).[12] All appointments are still made by the Lord Chancellor on behalf of the Queen, but this will be after receiving advice from Commission after selection of one candidate.[13] What this reform seeks to achieve is a judiciary, which is more independent and more diverse.

The Commission has fifteen members including judges, lay people, a barrister and a solicitor.[14] They are under an obligation to make selections of judicial appointments on the basis of merit while at the same time ensuring all candidates are of good character.[15] The guidelines under which the Commission functions were published in 2006[16], after a consultation with the former Lord Chancellor, Lord Falconer, states that merit will be based on five core objective criteria. This adds to the transparency of the selection process. 

In choosing candidates, selection commissioner are under a duty to ensure that the judges of the Court will, between them, have knowledge of, and experience of practice in the law of each part of the United Kingdom, for example, in the House of Lords there should usually be at least two Scottish law Lords and one from Northern Ireland. From this time in the courts there will be much bigger diversity between the judges experience, which will help in many cases to achieve best sentence. Furthermore, the Commission will publish the list of judicial vacancies and invite applications from suitable candidates improving the transparency of the system.[17]

What is most important about this piece of legislation is that the need to have a more diverse judiciary is laid down in the Act. Section 64 of the 2005 Act, headed ‘Encouragement of diversity’, stipulates that “[T]he Commission, in performing its functions under this part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments”. It does not refer to the selection but rather to those available for selection as selection is based on merit and it would be contradictory to have this provision encouraging the members of the Commission from making their selection on the basis of background rather than merit. It is agreed with Garry Slapper that “who gets to do the judging is important”.[18] Merit should always be a priority in selection of candidates to the judiciary.

Although, the 2005 Act brought many changes in appointing the judges there are still issues, which need to be addressed. One must bear in mind that the Lord Chancellor does have two rights to reject and/or require the Commission to reconsider its decision.[19] Until the process is cleansed of all political or possible political influences, the independence and diversity of the judiciary cannot be guaranteed. A panel is more likely to select a candidate with a diverse background than a Lord Chancellor who is unlikely to have a diverse background and who is accountable to the Prime Minister, who is more likely to be less diverse than the Lord Chancellor himself.

The social and education backgrounds of the judges has been examined and it has been showed that the judges are mostly upper middle class in origin, with over three-quarters attending public schools, and similar proportion either Oxford or Cambridge University educated.[20] The foreseeable future of the practice of appointing senior judges is not really optimistic. It will be unlikely that there will be any significant changes in the background of the people appointed in the near future. Only the attitudes of the successive generations may change the current position.

Conclusion

In conclusion, it is hard not to notice that the new judicial appointments process does not entirely satisfy the independence and diversity of the judiciary. Although the 2005 Act has made improvements to an otherwise old and archaic system of appointing judges, it still requires to be modified to meet the challenges that lay ahead. The right of rejection of the Lord Chancellor, who is also a member of the cabinet, sits uneasily with the doctrine of separation of powers and the independence of the judiciary. Further, it may prevent appointments of candidates from diverse backgrounds bearing in mind that a political figure is more likely to notify an appointment if it conforms to his own or his party’s political stance.

Footnotes

[1] Cotterrell, R, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd edition, Lexis Nexis UK, London, 2003, p22.

[2] Cotterrell, R, op cit, pp22-24.

[3] Cited in Cotterrell, R, op cit, p25.

[4] Lord Reid, “The Judge as Law-Maker” (1972) 12 Journal of the Society of Public Teachers of Law, 22,cited in Mason, A, “The Role of the Judge at the Turn of the Century”, in Lindell, G (editor) The Mason Papers: Selected Articles and Speeches, Federation Press,  Sydney, 2007, p55.

[5] Lord Radcliffe, “The Lawyer and his times”, Not in Feather Beds, London, Hamish Hamilton, 1968, 271, cited in Mason, A, op cit, p55.

[6] Hall v. Brooklands Auto-Racing Club (1933) 1 KB 205.

[7]    J.A.G. Griffith, The Politics of the Judiciary, 5th edition, Fontana Press, London, 1997, p336.

[8]    ibid, p295.

[9]    ibid, p327.

[10]  Posner, R, Problems of Jurisprudence, Harvard University Press, Harvard, 1990, p25.

[11] Lord Falconer of Thoroton, Written ministerial statement of the Minister for Constitutional Affairs, 13 July 2005 at http://www.theyworkforyou.com/wms/?id=2005-07-13b.40.2 .

[12] Constitutional Reform Act 2005, Section 61.

[13] Constitutional Reform Act 2005, Section 27(10).

[14] Constitutional Reform Act 2005, Schedule 12, para. 8.

[15] Constitutional Reform Act 2005, Section 63.

[16] The Commission Guidelines (2006).

[17] See Schedule 12 of the Constitutional Reform Act 2005, generally.

[18] http://business.timesonline.co.uk/tol/business/law/columnists/article2025618.ece accessed on 4 July 2011.

[19] Constitutional Reform Act 2005, Section 29.

[20] http://business.timesonline.co.uk/tol/business/law/columnists/article2025618.ece accessed on 4 July 2011.