One main assessment of the Judges in England and Wales today is that their legitimacy is lessened due to the public's perception of their role. Jeremy Bentham's13 quoted in David Pannicks14 book as simply saying that the qualities desired of a good judge is "that he must be a good one and thought to be so". With the current arrangement this system is seen to be unfair and undemocratic this cannot be so. As Malleson says,
"..the number of judges appointed each year has grown; the internal pressures on the appointments system have led to the creation of a far greater degree of formalisation and professionalism that has ever existed before. At the same time, external pressure in the form of criticism of the secretive and self-perpetuating nature of the system has brought about a series of reforms designed to improve fairness and openness." So it became increasingly clear there was a real need for reform. I feel the government has felt the need to make changes to increase the perception of legitimacy due to the issues raised by the lack of accountability and the secrecy surrounding appointments.
In three separate consultation documents, Lord Falconer set out the reform options with a clear signal of the government's preferred path. At the centre of the change is to create a new judicial appointments system based on openness and transparency. The first hurdle of who will appoint the appointment board, seem to be safely passed. It will be set up by an independent panel comprising the department's permanent secretary, a senior judge, a senior executive from outside the law and an independent assessor. This looks sufficiently robust to protect the procedure from political interference. The appointments commission itself is more disappointing.
The current preferred option is a 15-member board comprising 10 lawyers (five judges plus five lawyers) and just five lay members. This is seen by many to be much too heavily stacked with lawyers, particularly in a commission which will be told to widen representation. The Government, however, is seen to be opening up the system, both to attract qualified candidates from a wider range of social backgrounds and from a wider range of legal practice. The questions are there to be asked, how will this be possible when the committee itself is not representative itself?
With regard to the appointment of judges within England and Wales, for the legitimacy of judicial power to be increased, so must the "public feel confident in the integrity and impartiality of the judiciary"16. Thus implying parliament and government should not be any part of the selection or expulsion of judges. As the system stands this is not the case, the process is very much focused upon one or two politicians and it seems this will continue to be the case. With the Lord Chancellors role seen to be biased, as discussed above, the commission must therefore take over his powers. However the powers of the commission will also disappoint many.
It will be a recommending commission, not an appointing commission, at the higher levels. It is hoped that an independent Commission for appointments will increase the legitimacy of judicial power by making selection and appointment procedures fair, equitable and transparent to all, and which help to ensure the widest range of candidates for the modern judiciary. True, the preferred option does involve less ministerial intervention, in which only one name will be put forward by the commission, but it still gives the secretary of state the power of rejection.
In reality this would make a rejection difficult, but it does not look good if you are trying to keep politics out of appointments. The purported reason, the need to make the new commission accountable to parliament and the crown, looks misleading. I feel for there to be an increase in the legitmacy of judicial power not only should the public must have confidence that judges are independent, impartial and of complete integrity, which I am not sure this commission is going to be able to achieve this, but they also they must maintain the fundamental principle in appointing judges, selection on merit, not on favour.
The next section for reform is the structure of the instutions within our judicary, inparticular our top courts. The functions of the highest courts in the land are presently divided in a dual apex system ie, between two bodies. The Appellate Committee of the House of Lords receives civil cases from Scotland amd appeals from the courts in Wales and England and Northern Ireland. The Judicial Committee of the Privy Council handles specifically devolution issues and appeals form commonwealth countries.
The functions currently performed by the Appellate Committee will be moved into a new Supreme Court, quite separate building and institution from Parliament. This will help to improve legitimacy, as the public will be able to see a very separate top court. I think even though the Human Rights Act of 1998 and the increase of judicial review, has made people more aware of the anomoly that the highest court of appeal in this country is located within Parliament however as the institution stands many people do not fully understand the function of either of the top courts. That the second chamber of the House of Lords is an entirely different system, with own rules and functions to the "House of Lords" the legislative body.
With this new proposed arrangement there will be much greater clarity, and therefore legitimacy, of what the top court of England and Wales is, simply by uprooting the Law Lords from Parliament. The "Appellate Committee's limited resources inside the Palace of Westminster" is said to be "seriously hampering the administration of justice17". Moving to a larger court will be beneficial to public profile but also practical to the judges themselves. Also another aid to transparency proposed is that of the Judicial Committee. The new court would effectively absorb the devolved issues currently delt with by the committee. The system as it stands is ambiguous and to help the public comprehend our system, and enhance the percieved legitimacy, it will be much easier under the jurisdication of the same court.
This reform is not however due to the output of these courts for they have been praised for their "integrity and independence"18, more that the functions raise questions about whether there is adequate transparency of independence from the executive and the legislature to give public assurance about the independence of the judiciary. The basic principle in our constitution that allows senior judges to also be legislators is fundamentally wrong. The classical principle of separation of powers is directly opposed by this idea, and the role of the Lord Chancellor. He is entitled to sit in both Judicial and Appellate Committees and deeply involved in the executive functions, no matter how well this is shown to work, it is an exception of the UK system.
With these new proposals brings the idea that The Lord Chief Justice, the most senior judge, will take charge of the head of the judiciary. This is a much more sensible and more clearly defined answer to the problem of the Lord Chancellor. There is however an example of the executive and judiciary merging in these new proposals that The Secretary of State for the department for constitutional affairs (formerly the Lord Chancellor), will be asked to protect judicial independence causing again an overlap of functions. So these proposals look to be enhancing the judicial power and it's legitimacy but it remains to be seen if this is actually achievable.
Some judges have actively withdrawn themselves from debating in Parliament to try and increase the perception of integrity and reduce the claim of bias. However the judges, although many deny this, do in fact seem to put themselves into political controversies. This is seen is J. A. G. Griffiths19 work where he catalogues memorable interventions, for example, the Lords criticism of the criminal justice legislation by the Conservative government. It is fundamental that all steps are taken to minimise the judges from taking their advisory role too far, looking too politically motivated.
In Findlay v United Kingdom20 according to Article 6 of the ECHR the criteria for an "impartial trial" has been described as "subjectively free of personal prejudices". Immediately it becomes obvious that if members submit their own opinions to parliamentary debate of future legislation they effectively destroy any idea of a fair trial. However if a separate Supreme Court is set up and the judges were separated then the legislative would lose a substantial chunk of their highly experienced lawyers. This is a fair comment however I feel it needs to be achieved without contravening the European law, so legitimacy of power will be increased as regards to Europe by setting up a Supreme Court.
As discussed at the start of this essay there has been very little constitutional reform in this country. What seems like a radical overhaul of the system on the surface is in fact very superficial. Legitimacy of power is surely something that needs to be present throughout our constitutional arrangement, especially when referring to judicial power. These new changes in the appointments system and Supreme Court certainly will help to improve the perception of transparency, whether or not the judiciary will actually become more transparent and open remains to be seen.
Personally I feel these changes will not drastically change the appointment system or the workings of the highest courts from what we have had before. When defining legitimacy we saw that it was more about the "beliefs" and "opinions" that the systems and institutions were being managed appropriately. However, I feel these changes are actually reforming very little at all and therefore the powers bestowed upon the judiciary at present will not change dramatically.
The enormous gesture of constitutional change will appear at first to look as though it has given legitimacy to judicial power, then time will show there has been very little changed. But the judiciary will gain legitimacy as the public perception sees there is a willingness to change. Surely this is not enough, there needs to be complete faith by the judges themselves, the government, Europe and the public in the workings and dealings of not only the decisions made in courts but the institutions and practices behind them, for full legitimacy of power is to be gained.