The stereo-typical judge is represented as white, elderly, and male; in the higher levels of the judiciary this stereo-typical judicial make-up is in fact accurate. In the history of the judiciary there has never been an ethnic minority represented above the circuit bench. The average age of those appointed to the judiciary1 in total in 2001/2002 competitions was 50. 76 years2, with 85. 12 of all those elected being white. These figures highlight that the make-up of the judiciary, especially the higher levels of the judiciary are not representative of the whole of society.
However, is the make-up of the judiciary important? Is it really necessary that the judiciary is representative of all society? Interestingly it is the Lord Chancellor who is responsible for the appointment of all judges. However the Lord Chancellor is not elected by the state's citizens, he is politically appointed. Can it thus be held that his decisions are representative of the views of the majority of society? Furthermore since the judges themselves are not elected, is it comprehendible to suggest that the judges' views are representative of society?
It may contrarily be argued that this viewpoint is unsubstantial and unnecessary. The rule of law should superimpose any personal opinion and should be indebted to promoting democracy and fairness. Among the fundamental characteristics of a judge it is vital that they are fair and impartial. This implies that no other factor other than the facts of the case should affect any decision of the judge, suggesting that the outcome of the case would be the same no matter what the judge's social background, culture or race may be.
This disregards any notion that a judiciary needs to be representative of society. However an increase in the diversity of the judiciary may increase the public's confidence in the judiciary, displacing fear caused by an ignorance and lack of familiarity of the system. This will only be achieved a system is provided which appears to facilitate an open and accessible judiciary, contrary to the closed stereo-typical system. This would also implicitly deny any uncertainties that there may be an underlying discrimination within the appointment system of the judiciary.
It should be emphasised that a truly diverse and representative judiciary should extend further than assessing ethnic minority and gender representation. Political representation is a factor which could greatly affect many judges' views on certain issues. Lord Chancellors are all political appointees, yet have been shown to appoint dramatically different political standpoint judges from themselves. A representative political view in the judiciary again should not be an important factor as it is vital that each judge remains impartial, yet it does decrease any notion of discrimination or unfairness.
Impartiality is emphasised as the most fundamental point when assessing the judiciary by Lord Chief Justice Taylor. He claims that no judge can be representative of the whole of society, and furthermore each judge will inevitably have to try people different for themselves. Importantly, a judge's role is not to relate to the person they are trying, as this wholly defies the purpose of impartiality. Instead it should be claimed that by reflecting the make-up of society rather than promoting an aspect of a society promotes public confidence. Promoting public confidence is much what the Lord Chancellor tries to promote on his web page.
However, it is fair to say that in some respects the judiciary is expected to fall short of being representative of society as a whole. It is expected that the judiciary should be the educational elite, as a variation on this would suggest an incompetent judiciary who may lose the trust of the public. The title suggests that it is the consultation process which solely is to blame for the make-up of the present judiciary. However when further examining the full appointment system, it may be suggested that it is truly unfair to claim that the consulting process should solely be abolished in order to enable change in the judiciary.
The first step of the appointment process is the application. Steps have been made to encourage and make more people aware of positions available. This has been done by advertising in a great diversity of media, and within a broad scope in type of media. For example in the tabloids advertisements have been placed in black magazines, different political newspapers, and via the television, so that higher catchments of people have been targeted.
The application form itself has been adapted so that educational deprived persons can explain why they think that they are disadvantaged and how they are not to blame, aiming to make the system more accessible to those who might be missing some of the vital criteria needed to assess their ability. However the application process can still be over-ridden by the Lord Chancellor, who reserves the right to "invite" those who have not applied, and positions in the high court are solely by invitation only.
This suggests a biased and imbalanced viewpoint in the very early stages with some of the candidates. Should it not be considered that if the candidate does not apply for the position they obviously do not deem their expertise to be of a high enough standard to enter the competition. In response it may be viewed that the Lord Chancellor and other judicial officers will have key knowledge of what to look for in persons who may indeed have the correct attitude and criteria to be suitable for the judiciary, yet have neglected to note, or have misunderstood the criteria themselves.
The Lord Chancellor is then under an obligation to ensure that the best applicants, or those he feels have the potential to be a good candidate should enter the application process so that their potential can be the more fully examined. It can be see why the consultation process has been, and will possibly continue to be, highly controversial. All too often the consultation process has been deemed the "system of secret soundings". Research3 shows that one reason why people felt that they would not apply to the judiciary is that they feared "there was a need to network and socialise in the right circles to get known".
This critical perception is grounded in a particular component of the consultation system where senior judges and other judges are requested to comment on the applicant based on the criteria that is used o examine each candidate. It is reasonable thus to assume that those most familiar and friendly with those reporting on them will receive the highest or the most in depth appraisals. The Lord Chancellor based on the recommendations of Sir Leonard Peach has highlighted that there is "no secrecy on who is consulted".
Any accusations of misconduct or any other information which may negatively affect an application is disclosed to the candidate, so that they may give an accurate account or deny the occurrence. Also in order to try and counter balance the controversy which exists in the consultation process, candidates are now invited to name up to six persons who may be consulted in order to gain a reference. The general consultation process is still important as it provides a more rounded report on the applicant, as they are unlikely to submit names of consultees who would give them an unfavourable report.
Ignoring completely the appointment process, could there be any other factors why the make-up of the judiciary will not change? In the research performed by Dr Kate Malleson and Dr Fareda Banda many people simply did not want to be a judge and some women were put off simply because they have or foresaw family commitments. The underlying factors beneath many people never wanting to become a judge could revert to stereo-types, such as inaccessibility, manifested by the appointments system.
It has been identified that the judges above the circuit-bench level do indeed fit the stereo-type of middle-aged, male and white. However the "trickle-up hypothesis" fairly suggests that the pool of people at the bottom of the judiciary ladder at the moment, from whom the higher levels of judge will be appointed as necessary are very representative of society, and that it is fair to claim that as these people gain the valuable experience they need they will infiltrate into the higher levels to produce a judiciary which is representative of society.
If the consultation process were to be abolished, what would take its place, if it were to be replaced at all? Sir Leonard's suggestions have already created new processes which are dramatically changing the appointment process. The launch of a new Pilot Assessment Centre in 2002 is placing further emphasis on the candidate's own performance, rather than on reported evidence, which the consultation process provides. An appointments commission would perhaps provide the best alternative for the consultation process, providing many objective views from people of different professions and backgrounds.
1 Statistics apply to those appointed to only Recorder in Training, Circuit Judges, District Chairman of Appeals Tribunal (Scotland), Deputy District Judge (County Court), District Judge (PRFD), Senior Circuit Judge (Old Bailey). 2 Statistics provided from Lord Chancellor's Website: www. lcd. gov. uk 3 1998 – The Lord Chancellor's commissioned research by Dr Kate Malleson and Dr Fareda Banda into factors affecting decisions to apply to the judiciary.