Wilson et al: English Legal System Directions 
Practical examples
Test bankWilson et al: English Legal System Directions
Judiciary
Question
'The youngsters believe that we come from a narrow background – it's all nonsense.' (Lord Denning, Master of the Rolls (1981)).
Critically discuss Lord Denning's comment in light of Parliament's reform of the judicial appointments system in the Constitutional Reform Act 2005.
Answer Guidance
This question requires an understanding of the composition of the judiciary, the criticisms that have been made regarding the (lack of) diversity in the judiciary, the significance of the former appointment system in contributing to that (lack of) diversity, the new appointment system under the 2005 Act, and finally an analytical discussion of the new system.
Answers should therefore discuss the present composition of the judiciary and identify the criticisms that have been made about the fact that the stereotypical judge fits into a very narrow frame of reference (which gets increasingly accurate as one moves up the judicial hierarchy). It would be useful to cite specific examples, for example, pointing out that, of the present 12 Law Lords all are white, only one is female (Baroness Hale), all are former barristers (rather than solicitors – even though most lawyers are solicitors), and all were educated at public school and then at either Oxford or Cambridge Universities. The evidence would therefore suggest that Lord Denning's comment was not entirely accurate. Indeed, Lady Hale wrote (when she was a Court of Appeal judge) that 'my colleagues are a remarkably diverse bunch, but I do not need to rehearse facts about how unrepresentative they are: not only mainly male, overwhelmingly white, but also largely the product of a limited range of educational institutions and social backgrounds' (Equality and the Judiciary [2001] Public Law 489).
Answers should then discuss why this situation has happened, which requires discussion of the former appointment system. This involved judges being approached directly by the Lord Chancellor following the process of 'secret soundings', which as the name implies involved a lack of openness and transparency. Answers can refer to criticisms that were made of this system by the Law Society, the Commission for Judicial Appointments (the JCA, not to be confused with the JAC) and academics. These critics alleged that the system perpetuated an 'old boy' network, whereby incumbent judges (typically white, male, middle-aged, public-school educated, former barristers) recommended younger versions of themselves to the Lord Chancellor for appointment to the judiciary.
Answers should then set out the reforms that have been made to the appointment system by the introduction in s.61 of the Constitutional Reform Act2005 of a Judicial Appointments Commission (JAC). This will, ideally, involve a discussion of its composition and powers. In terms of composition it would be useful to note that the JAC itself has a diverse membership, comprising a mixture of judges, lawyers, other legal professionals, and a number of lay members, including the chair, as required by the 2005 Act. In terms of powers, it is important to note that the JAC does not actually have the power to appoint, but to recommend for appointment. However, a key point to make is that no judge can now be appointed without having been recommended first by the JAC.
Analysis of the new system must, at this stage, be a little tentative as the JAC only began operations in 2006. Supporters of the new system point to the more open and transparent appointment system (set out in the 2005 Act), the clear appointment criteria that have been imposed (appointment must be "on merit" (s.63 of the 2005 Act)), the contribution that the lay members can bring through their experience of business, human resources, management, and so on. The reduced role of the Lord Chancellor (a political appointment) in the judicial appointments process is also argued to be a boost to the independence of the judiciary. Critics of the new system have complained that the JAC is an unelected, unaccountable body which marginalizes the role of incumbent judges.
Although not strictly required by the question, it would not be inappropriate to discuss some of the alternative methods of judicial appointment – after all, these were considered (but rejected) by the government prior to placing the Constitutional Reform Bill before Parliament. They include a 'career judiciary' model, widely used in continental Europe, and a 'judicial elections' model, used in many US states. Both models have succeeded in increasing diversity but arguably at the expense of judicial independence.
Conclusion: Lord Denning's comment is unsupported by the evidence. There is a stereotypical judge, and most judges conform to this stereotype. The narrow background of the judiciary can be explained by reference to the old appointment process of 'secret soundings', which was a self-perpetuating system. Change was probably inevitable and the 2005 Act does mark a clear break from the past. On the surface it certainly appears to be more open and transparent but whether it will produce a more diverse judiciary, only time will tell.
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