By Joanna Harrington, a professor of law at the University of Alberta and 2015-2016 Fulbright Chair at the University of Texas-Austin
Originally published on the Globe and Mail on Wednesday, Jul. 29, 2015 3:00AM EDT
Ten years ago, the original Westminster Parliament brought to an end the ability of the executive branch to control the judicial appointments process in England and Wales for all but the most senior positions. There’s a lesson in here for Canada.
With the passage of the Constitutional Reform Act of 2005, an independent body for the appointment of judges and tribunal members was created to ensure that those holding judicial office are selected solely on the basis of merit, through a fair and open competition. The members of the Judicial Appointments Commission are themselves selected through open competition, other than the three members from the judiciary.
After putting short-listed candidates through role plays and interviews, the commission recommends one candidate for each vacancy, which the minister can accept or reject, or seek commission reconsideration.
No longer is the judicial appointments process for England and Wales (and partly used in Scotland and Northern Ireland) reliant on a system of talent scouts and “secret soundings” for appointments “by invitation” or a “tap on the shoulder.” Instead, the system relies on publicly advertised notices of vacancies, open job competitions, written tests, selection panels involving members of the public, articulated standards and competencies, and training schemes to enhance the pool of qualified applicants (such as judge shadowing programs and the use of part-time appointments to gain experience). And while Canada still requires a minimum of 10 years at the bar to be a judge, the time period post-qualification in the United Kingdom has been reduced to seven years (five years for the District Court).
The desire for diversity has been a motivating factor, with many believing that those on the bench should be representative of the public they serve. This means the appointment of women judges, as well as judges from ethnic minorities (what are known in England as BAME appointments to increase judges from black, Asian, minority ethnic communities) and judges from varied professional backgrounds (including legal academics), and indeed, the appointment of a number of High Court judges under the age of 50.
Some argue that removing the flexibility inherent in a discretionary system has in reality made diversity harder to achieve. But there are other means to address this concern while retaining an open competition, such as tweaking the process so as to provide feedback to failed candidates to encourage reapplications, and using tie-breaker or tipping provisions when two or more candidates for a judicial post are of equal merit.
As for the selection of the U.K.’s most senior judges, there are separate commissions, which for the U.K. Supreme Court, like the Supreme Court of Canada, must recognize the need for the judges to have knowledge and experience in the law of each part of the country. (Scotland, like Quebec, brings a need for civil law expertise.) The separate selection panels used for senior judicial appointments also have obligations of consultation with certain senior judges, and with the First Ministers of Scotland and Wales and the Northern Ireland Judicial Appointments Commission. There is also a limited role for the Lord Chancellor (in essence, the law officer within the cabinet).
After an extensive inquiry into the process of judicial appointments, the U.K.’s House of Lords Select Committee on the Constitution made clear its view in 2012 with respect to the link between judicial independence and the retention of public confidence in the justice system. The cross-party body was also against the use of pre- and post-appointment hearings within Parliament for senior judicial appointments. The worry is that political considerations will inevitably inform both the selection of parliamentarians to sit on the relevant committees or panels, and the choice of questions to be asked.
In countries of the Westminster tradition, judges do not rely on any democratic mandate. Instead, their legitimacy rests on their independent status and appointment on merit. The role of Parliament, and of parliamentarians, therefore lies with the oversight of the judicial appointments process as a whole, and not the selection of a particular individual.