Written by Nick Pitfield (Nov 2005)
Introduction:
The Lord Chancellor, now also known as the Minister for Constitutional Affairs, has a very active role in the appointment of judges as is going to be outline in the answer to this question below.
SUPERIOR JUDGES - LORDS OF APPEAL IN ORDINARY:
The Lords of Appeal in Ordinary, also known as the Law Lords, are the highest ranked judges in this country. They currently consist of eleven men and one woman, who is the recently appointed Lady Hale from the Court Of Appeal. They have to have at least 15 years experience as a qualified lawyer to be eligible to become a Law Lord. They sit in the Judicial Committee of the House of Lords, where they deal with mainly civil cases and only a couple of criminal cases within the year, but also on the well-respected Privy Council. The Crown on recommendation of the Prime Minister makes the actual appointment for a Law Lord; however, the Lord Chancellor still plays a large part as he recommends the Prime Minister. To become a Law Lord the post is invitation only and they cannot apply.
LORD JUSTICES OF APPEAL:
The Lord Justices of Appeal sit in the Court Of Appeal and the Divisional Court. The President of the Criminal Division of the Court of Appeal and the most senior judge in the Queen’s Bench Division on the High Court is the Lord Chief of Justice, Lord Woolf. He is second only to the Lord Chancellor. The President of the Civil Division is The Master of the Rolls, who also keeps the lists of qualified solicitors. They have a much heavier workload than in the House of Lords and deal with both civil and criminal cases. Same as the Law Lords, Lord Justices of Appeal are appointed by the Crown on recommendation, where the Lord Chancellor plays a large role in recommending good judges to the Prime Minister. They must have 15 years experience and are usually appointed from the High Court. As with Law Lords the post is invitation only and they cannot apply to become a Lord Justice of Appeal.
HIGH COURT JUDGES:
High Court Judges, also known as Puisne Judges, sit in the High Court. The High Court is split into three sections: Queens Bench, family and Chancery. The biggest percentage of judges who go on to become Lord Justices of Appeal are usually male barristers from the Queens bench, however, judges are promoted from all three sections. In the High Court only civil cases are dealt with even though it is known for Puisne Judges to sit in the Crown Court in cases such as Ian Huntley’s, where it is high profile and a more experienced judge is needed. High Court Judges have to have at least ten years experience are one again appointed by the crown on recommendation from the Prime Minister with help from the Lord Chancellor. All Superior Judges are selected in the same way. It is also possible to become a High Court Judge with only two years experience as a Circuit Judge. High Court Judges are allowed to apply but most are selected from in invitation. It is rare to be asked to become a High Court Judge from being a Barrister or Solicitor and not become an Inferior Judge first. It is currently noticeable that most Superior Judges come from Barristers, possibly due to their current experience in Court. Once you become a High Court Judge you are eligible to get knighted.
INFERIOR JUDGES – CIRCUIT JUDGES:
Circuit Judges sit in both the County and Crown Courts, but predominantly in the Crown. They have to have at least 10 years experience and they deal with more difficult cases. Their posts are advertised and hey are appointed by the Lord Chancellor from Barristers and Solicitors.
DISTRICT JUDGES:
District Judges, also known as Stipendiary Magistrates have to have at least seven years experience and are often former solicitors. There are two types of District Judge: One that sits in the County Court and deals with civil matters and one that sits in the Magistrate’s Court and deals with criminal issues. Since Lord Woolf has made his reforms, there are many more District Judges being appointed. Vacancies are advertised where they appointed by the Crown on the Lord Chancellor’s recommendations. When an inferior Judge applies, they are interviewed by a panel, made up of one lay magistrate, one judge and one member of the Lord Chancellor’s department.
RECORDES AND ASSISTANT RECORDERS:
The final group of Inferior Judges are recorders and assistant recorders. They are part time judges who sit in the Crown Court. They sit fro 20 days a year and must have been practising as a barrister or solicitor for at least seven years. Their appointments are reviewed after every five years. They are appointed by the Lord Chancellor, and many are highly qualified barristers or QCs who are not willing to take a dramatic pay cut yet to become a judge, so they sit as a Judge for just 20 days a year. A famous QC who is a recorder is Cherie Booth
RETIREMENT AND DISMISSAL OF JUDGES:
The age for a Judge to retire is 70, however it is known for some to serve for an extra few years in the higher Courts. The inferior judges: Circuit Judges, District Judges and recorders can be dismissed by the Lord Chancellor for any incapacity or misbehaviour, even though for a recorder it would be more likely they would just not be reappointed after five years. With Superior Judges: High Court Judges, Lord Justices of Appeal and Lords of Appeal in Ordinary, they cannot be removed by the Lord Chancellor. They can only be removed at the request of both Houses of Parliament. This has never been used for an English Judge, but in 1830 an Irish Judge, Jonah Barrington, was removed for misappropriating £700 from Court funds.
ROLE OF THE LORD CHANCELLOR:
Currently the Lord Chancellor, Lord Falconer, has three main roles. He is involved in all legislative, executive and judicial sides of law. He sits as a speaker in the House of Lords, where he takes part in debates and can introduce new Bills for consideration. His executive role is that he is a member of the cabinet and he is also a judge in the House of Lords and head of the Chancery division in the High Court, where he is entitled to sit in both. He is also one of the Judges of the Judicial Committee of the Privy Council.
When he first became Lord Chancellor the first thing he wanted to do was to do away with that role, however it has been voted against in the House of Lords so the role still exists. He believes that their should be a separation of powers, as one reason why we have good judges in this country, especially true for superior judges, is that they are free to make a decision and cannot be punished by the Government so their decisions do not have to favour the government. This reason was originally put forward by a Frenchman named Montesquieu.
Since the Constitutional Reform Act 2005 was brought into place on 24 March 2005, the Lord Chancellor will be transferring his judicial functions to President of the Courts of England and Wales. The Lord Chief Justice, currently Lord Woolf, will become President of the Courts of England and Wales. He will be responsible for the training, guidance and deployment of judges. He will also represent the views of the judiciary of England and Wales to Parliament and ministers.
This reform also states that the new Supreme Court will be brought into action, which will be completely independent from the House of Lords which are currently used as a court and as a meeting place for parliament.
CONCLUSION:
As you can see the Lord Chancellor used to have a busy job when appointing Judges, as well as being on all three sides of the powers. However, since the Constitutional Reform Act 2005, this has changed and he is no longer involved with the judicial side.
INTRODUCTION:
It is noticeable that with any role there are advantages and criticisms, yet the role of the Lord Chancellor has been under meticulous review.
ROLES OF THE LORD CHANCELLOR:
The Role of the Lord Chancellor is involved in all sections of law: legislative, executive and judicial. On the legislative side, the Lord Chancellor can sit as a speaker in Parliament and can introduce now Bills for consideration. He is also part of the cabinet which is formed through government on the executive side, and is head on the judges on the judicial side. This means he is involved in the law making side, the side administering the law and the side putting the law into practise. This is seen as unfair as in The English Legal System by Jacqueline Martin the theory states that no one should be involved in more than one ‘arm of the state’. Such a person was an eighteenth-century French political theorist Montesquieu, who believes in the separation of power.
HOW THE INDEPENDENCE CURRENTLY BENEFITS THE JUDICIARY:
Firstly, a major point there is a good judicial system in this country is due to the fact that Judges are independent from the legislative side of the law. Not even the Law Lords are allowed to sit in any political debates as it is seen as the judiciary becoming too involved with government. Thus one of the reasons why the Supreme Court wants to be brought into action: to stop any link between judges and government.
To help the judges make independent decisions, with no bias because of a close link to Government, superior judges cannot be dismissed by either the Government or the Lord Chancellor, who is the only judge involved with the Government. Therefore judges can make decisions that may displease the Government, but they know that their job is safe so feel free to make that decision.
Judges are well protected from outside pressure in many ways. The first way is financially. Judges get paid through a consolidated fund and do not need authorisation from parliament, so they feel safe they will receive their due money and not get any taken away for a decision they do not agree with. Secondly a judge cannot be sued, so once again feel free to make decisions some people would not be happy with. This was emphasised in the case Sirros -v- Moore (1975) where the key factor emphasised was that judges were independent in decision making. Finally the security of tenure protects Superior Judges from threat of exclusion.
CRITICISMS OF ONE PERSON CARRYING OUT THIS ROLE:
There are three main criticisms of the Lord Chancellor carrying out the roles he does are as follows:
From the outset, it is said in AS Law bye Elliot and Quinn that the selection of judges is very much dominated by politicians, secretive and discriminatory. The two main characters involved in the appointment of judges are the Lord Chancellor and the Prime Minister, both of which are politicians, therefore meaning they could be swayed in their decisions.
Secondly, it is said that the idea of ‘secret soundings’ means that much discrimination in the selection of judges occurs. On Saturday, 29 November 1997 Lord Irvine of Lairg, the ex-Lord Chancellor, asked ‘Do you honestly believe that my Permanent Secretary turns up at a senior judge’s door asking whether old Copperfield is a good chap, or whether young Pickwick is a bit suspect because, rumour has it, he voted for the Green Party at the General Election?’ He felt the idea of ‘secret soundings’ were ridiculous, however, skeptics are still unsure and believe that some bias could be caused due to secretive meetings.
REFORMS:
It has been mentioned by many that a more powerful Judicial Appointments Committee needs to be set up that does more than just a supervisory role. They have no real power to help the fairness in selecting judges. It is felt a new board should be made up of representatives from the bar, the Law Society, academic Lawyers, the Judiciary and possibly some Lay members. These would therefore help a fairer share of people get selected as not only a judge, but a superior judge. Superior judges are nearly all male, yet a reform like this could mean that female judges and solicitors have a better chance to progress.
CONCLUSION:
When summing up all these points they are nearly all based around the fact that the Lord Chancellor is too closely linked to the Government when considering he appoints judges. Therefore it could mean that bias could be an issue that needs to be dealt with. Since he has brought in the Constitutional Reform Act 2005, he now has a much better separation from the judiciary. However there still is a possibility of bias.
BIBLIOGRAPHY:
The English Legal System – Jacqueline Martin
AS Law – Elliot and Quinn
Research from pages on the internet