p.p1 role of the Lord Chancellor before the CRA

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The British Constitution has evolved over a long period of time, however, it has been subject to multiple criticisms. Particularly the Judiciary due to a lack of diversity among the senior judges and courts. The government have implemented new appointment processes to attempt to form a diverse judiciary for the future, such as creating the Constitutional Reform Act (CRA) 2005. The Constitutional Reform Act 2005 addressed 3 topics; Office of the Lord Chancellor, a framework for the Supreme Court and to regulate the appointment of judges. This was to further distinguish the doctrine of the separation of powers, which suggests that the principal institutions of state which are the executive, legislature and judiciary should each be divided and separate in function from each other (Bellamy, 1996). The annual Judicial Diversity Statistics report was published in July 2017, currently, 28% of court judges are female compared to 51% of the population being female. Only 7% of court judges are BAME (Black, Asian, Minority Ethnic) compared to 12% of the population (Judiciary.gov.uk, 2017). It is vital that the judiciary should be representative and inclusive of the British population. This essay will look at the previous appointment processes alongside the Constitutional Reform Act 2005 which now aims to diversify the bench. 

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Previously, the appointments of judges were made on the recommendation of the Lord Chancellor who was the most senior judge in the English court structure. The Highest court had been the Appellate Committee of the House of Lords. There were historical factors leading up to the radical reform of the role of the Lord Chancellor before the CRA 2005. The Lord Chancellorship was a party-political appointment which included other roles such as having a seat within the cabinet, therefore, being a part of the executive (Slapper and Kelly, 2016,436-437). ‘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’ (judiciary.gov.uk). As it would be suspected that the appointments could be subjected to political influence. This also led to critique that judges were appointed from similar social circles using the discrete ‘tap on the shoulder’ method, rather than by merit from a pool of widely drawn eligible candidates. This provides a reason as to why the senior judiciary now lacks diversity. The original proposal of the Constitutional Reform Bill was to completely abolish the office of the Lord Chancellor, however, this was extremely controversial. The importance of the role was significantly reduced as it was deemed ‘no longer appropriate for one person to perform the disparate functions of the Lord Chancellor in clear contradiction of the doctrine of the separation of powers’ (Slapper and Kelly, 2016,439).

The Constitutional Reform Act 2005 introduced the Judicial Appointment Commission (JAC). A separate and independent body with the purpose of appointing judges. ‘In order to maintain and strengthen judicial independence by taking responsibility for selecting candidates out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable’ (jac.judiciary.gov.uk). The JAC identified five core qualities that were required of a judicial member. It included ‘intellectual capacity, personal qualities, ability to understand and deal fairly, authority and communication and efficiency’ (Slapper and Kelly,2016,457-458). A short list of successful candidates would be proposed to the Secretary of State for their approval or disapproval. This would decrease the idea that judicial appointments were being made on political grounds rather than merit. The Act focused on two main aspects surrounding the appointment process, merit and good character (section 63) and also the encouragement of diversity (sections 64). By comparing the statistics of the Judiciary before the JAC was created compared to current statistics, it is shown that the diversity has increased slowly for women and BAME. In 2005 the total number of females working within the judiciary was only 16.9%, and the total BAME employees were only 2.9%(Judiciary.gov.uk, 2005). This compared to the statistics presented at the beginning of the essay, from the 2017 Judicial Diversity Statistics report, shows an increase to provide an indication that the new, current appointing system is working slowly to diversify the judiciary.

The Supreme Court was another creation of the Constitutional Reform Act 2005 to achieve a clearer separation of powers between the legislature and the judiciary. It was previously known as the Appellant Committee of the House of Lords, which was housed within Parliament. The commencement of the Supreme Court relocated to former Middlesex Guildhall an entirely separate building in Parliamentary Square (Court, 2018). This physical relocation emphasised the separation of powers.  Eleven of the twelve justices of the Supreme Court were previously top judges (The ‘Law Lords’), although they retained their titles they could no longer sit or vote in the House of Lords (supremecourt.uk, 2018). As the Supreme Court is the highest appeal court in the UK, it is often criticised for the lack of diversity in gender, ethnicity and social composition. Currently, the statistics stand at 10 men and 2 women with no representation of BAME, this is completely unrepresentative of the population and therefore has been subject to multiple criticisms (Biographies of the Justices, 2018). These diversity issues have been referred to as “a serious constitutional issue” (Bowcott, 2018). Lady Hale was appointed the president of the UK Supreme court in 2017. She was the first female to be appointed this position which was a historical moment for the judiciary (Siddique, 2017). In her 2015 speech presented at the University of Birmingham, she discussed the topic of diversity within the Supreme Court. 13 appointments had been made since she was sworn in as a Lord of Appeal in 2004, ‘all were white. All but two went to independent fee-paying schools. All but three went to boys’ boarding schools. All but two went to Oxford or Cambridge’ (Supremecourt.uk, 2015). Her statement further indicates that the appointed justices all came from a narrow pool of candidates with very similar backgrounds.

The reform to attempt to rectify the diversity issue within the judiciary is a topic which is commonly discussed, however, it is not ignored that this process to reach full representative diversity will take many years. Andrea Coomber, the director of Justice stated in early 2017 that “Now is the perfect time for change” as a majority of the Supreme Court Judges will be replaced over the next 3 years, resulting in 9 vacancies becoming available. With a high number of senior positions opening up, there is an opportunity to change the demographic composition of the senior judiciary. Which could potentially cascade down and alter the diversity of the lower courts (theguardian.co.uk, 2017). At the start of the legal year October 2nd in 2017, 3 justices joined the Supreme court. Lady Justice Black, the second female to join the justices and also a further two men; Lord Justice Lloyd-Jones and Lord Justice Briggs (SupremeCourt.co.uk, 2017). Alternatively, the opposing argument is that rushing for diversity could be detrimental to the British Legal System. Lord Sumption, a Supreme Court judge stated that it would take ’50 years before the number of women on the Bench matched the total of men’. He believes that the appointment process should not be manipulated by diversifying the Bench in mind, however, it should be purely based on merit (Evening Standard, 2018).

In conclusion, there is no question that the judiciary should be representative and inclusive of the population, however, there are opposing sides as to how quickly this can be achieved. The Constitutional Reform Act 2005 created a separate independent body to appoint the future judiciary, selecting from a diverse pool of eligible candidates. However, to argue that judicial diversity is a difficulty to achieve, it can be proven wrong by the majority of European countries whose gender statistics of female judges average at 51% (BBC News, 2018). Therefore if it can be achieved in neighbouring countries then this could discredit the pace in which the diversity of the judiciary is increasing. Overall for the judiciary to modernise it must be attractive and inclusive to all and a true reflection of the British public.