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PROGRAMME INFO |
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Every week Nick Ross invites a panel of public figures to discuss an issue of current concern.
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Judges
Listen to the 15 October 2003 programme.
Introduction
Are Britain's judges out of touch with the nation? Is the judiciary a symbol of elitism - an old boys' network that goes against the true principles of democracy? Or is the preservation of our judicial system the only key to keeping it authoritative and non-politicised?
Currently in England and Wales, judges are appointed by the Lord Chancellor, but in June 2003 the government announced a massive shake up of the system which would leave a panel of lawyers and lay people the task of appointing our judges - as is currently the system in Scotland. Is this really the way forward or could politics sneak in the back door in the appointment of the committee?
Thus reform is in the air. Indeed the most powerful judge has been abolished: the Lord Chancellor, Lord Falconer, has been relegated to the more mundane Cabinet title of Constitution Secretary. Some argue that the board set up to appoint judges in the Lord Chancellor's place does not satisfy requirements for openness and accountability. Several alternatives are proposed, including direct elections. This might seem far-fetched but it is established procedure in many states in America.
Should we have US-style elections for the judiciary in Britain? Or will a quango appointments board be less susceptible to the capriciousness of the electorate? Should we leave things as they are?
This week, The Commission looks at how we should appoint our judges.
The Commissioners
Richard Wakeford
Chief Executive of the Countryside Agency
Richard Wakeford became chief executive of the Countryside Agency at its formation in April 1999 and was previously chief executive of the Countryside Commission from 1996. Prior to this he worked in the Cabinet Office, where he dealt with economic and environmental affairs across government. Before that in the Department of the Environment, he developed a range of land use planning policies and implemented the 'plan-led', system. He edited the land use and transport chapters of the 1994 UK Sustainable Development strategy, building on his earlier work on the team which prepared this country's first Environment White Paper This Common Inheritance in 1990. He was appointed a non-executive member of the management board of the Department for Environment Food & Rural Affairs (DEFRA) in September 2001 and is a member of the UK Sustainable Development Commission.
Martin Stephen
High Master of Manchester Grammar School and incoming head of St Paul's School for Boys in London - one of the nations top independent schools.
Martin studied for his PhD at Sheffield University. He became head of The Perse, Cambridge in 1987 until moving to Manchester Grammar in 1994, where he was instrumental in setting up a bursary scheme for the school. During his time at the school he has been an educational advisor to both Conservative and Labour MPs, and he will follow in the footsteps of a former 19th Century head of Manchester Grammar school when later this year he takes up the new position of Head of St Paul's School in London. Martin has published 15 books on English literature and naval history.
Isabel Nisbet
Acting Director of the Council for the Regulation of Healthcare Professionals and formerly head of policy at the General Medical Council.
Isabel Nisbet is the Acting Director of the Council for the Regulation of Healthcare Professionals, a new statutory body responsible for promoting best practice across the regulation of all the health professions. She has been seconded to this post from the General Medical Council, where she was Director of Policy from 2001 - 2003 and Director of Fitness to Practice from 1999 - 2001. For four years before that she was Deputy Health Service Commissioner (Ombudsman) for England, Scotland and Wales. She was a career civil servant, with posts in the Scottish Office, the Cabinet Office and the Department of Health.
The Witnesses
Simon Lee
Vice Chancellor of Leeds Metropolitan University & former Professor of Law at Queens University Belfast. Author of Judging Judges and an expert on ethics and the judiciary. Simon's most recently published book was titled Uneasy Ethics.
Simon believes that whilst the current system is imperfect, it has produced the quality, integrity and independence of somebody such as Lord Hutton. But despite this, his is in favour of a more democratic system.
He believes the American system is in fact several systems. Judges run for office at some lower levels. At the highest level, they are nominated by the executive and subjected to confirmation proceedings by the legislature. This is sometimes equated with democracy (although Simon argues that democracy is also about respecting minority rights as well as following majority rule).
However, there are some elements of the US system which Simon would prefer to the present British system and the government proposals. He thinks that the greater awareness of US judges' positioning on the major issues of the democracy is bound to follow here and is desirable. Greater public scrutiny should follow but currently the media is more comfortable with politics than with law. This must change.
Other changes in the legal system are also inevitable, such as the greater involvement of pressure groups and third parties in litigation, eg the Archbishop of Westminster in the Siamese twins' case. Arguments were more about morality and less about law than might be assumed.
Karon Monaghan
Karon Monaghan specialises in discrimination and employment law. She is the current chair of the Discrimination Law Association and a co-author of Legal Action Group's Discrimination at Work.
Karon has investigated the promotion of diversity generally within the judiciary in the UK and believes that the pool of people that judges are drawn from needs to be widened in order to make the judiciary representative of society. Currently this pool is so limited that the judiciary cannot help but be criticized for its lack of diversity and representation.
Karon sees that a vast overhaul of the way judges are appointed needs to be brought into force which would include looking at the assumptions we have over the ages of judges and lowering it in hand with a number of other elements. These would help promote more diversity lower down the ranks and filter it through. She would also like to see different entry points for judges which would take people from different career structures such as chairs of employment tribunals etc. These people have similar experience and in general do represent society more. This should be implemented with a more rigid career structure which will allow people to join the judiciary at a later stage as well - thus promoting other experience from other fields.
Karon does not see that judges should be elected in a similar way to the USA, instead she sees that senior level judges should be appointed by a Judicial Appointments Commission in the same way as government plans, but crucially she believes that it should consist of a majority of lay members.
Tim Besley
Professor of Economics and Political Science at the London School of Economics, and Director of STICERD - The Suntory and Toyota International Centres for Economics and Related Disciplines, at the LSE.
Tim has closely studied elected judges in the USA in discrimination cases and has found that they are more open minded and have a greater success with anti-discrimination legislation. Non elected judges seem to be more reactionary and conservative. He does not believe all judges should be elected, but in certain cases it does have many merits. Within the election system, Tim doesn't like idea of lifetime appointments. He believes that specialist judges should not be elected as their knowledge needs to be specialised in certain areas.
Contrary to public perception there is a case in some circumstances for the electorate rather than as at present the selectorate to make the decision about who should be judges. It goes right to the heart of democracy and certainly his work suggests to him that there is a correlation between making a success of radical new legislation and judges that are directly elected.
Roger Smith
Director, Justice
Justice have been behind the formation of a judicial appointment committee (like that announced by the government in 2003 and implemented in Scotland last year) since 1972. They published a paper suggesting such a system - based on the systems in other countries - over a decade ago, and believe that such a commission will promote greater diversity and wider representation in the judiciary.
"The Government has rather courageously decided to abolish the post of the Lord Chancellor which represented an indefensible combination of the judicial, legislative and the executive. An appointments commission follows logically from the correct decision to end the role of the Lord Chancellor as head of the judiciary."
Justice believe there should be three benefits from establishing a judicial appointments commission:
There should be a stronger guarantee that our judges are, and are seen to be, independent and impartial because of an appointment process that removes, narrows or makes transparent (depending on the exact model adopted) the involvement of the executive in the appointment.
It should be possible to improve the technical personnel processes in relation to appointment. Certainly, the Commission for Judicial Appointments has identified failings in the current system.
A commission is likely to prove a good way of increasing diversity in the judiciary as a whole.
"A satisfactory commission could be composed in a number of different ways. The existing Commission has no judicial or practising legal members and this model might well work in practice. It is, however, important that the new arrangements carry the confidence of the existing judiciary and legal profession. That would argue for a more balanced membership. It does seem important that the commission develops a corporate approach and identity."
So, Roger would be opposed to nomination by individual interest groups such as the Law Society. Other than that, a wide range of possible membership patterns would be satisfactory. If the lay people are in a minority overall, then Roger would appoint a lay chair.
As a matter of both principle and practice, the commission should not appoint at the higher levels. In principle, appointment should be by the Queen on advice of ministers who retain, therefore, accountability for the working of the process. In practice, an appointing commission might tend to make rather conservative appointments because of a tendency to avoid the politically controversial.
Edward Garnier QC MP
Former Shadow Attorney General
Edward Garnier has been Member of Parliament for Harborough since April 1992. He was appointed Queen's Counsel in April 1995, a Crown Court Recorder in 1998 and a Bencher of the Middle Temple in 2001.
Edward believes that the status quo is the best system for appointing judges and should not change. The Lord Chancellor's position should continue and his role as appointer should remain intact.
Edward is vehemently against an American style system of electing judges as it opens up the judiciary to corporate, political and public pressure when, as is proven by our current judiciary, such things need not be the case. He believes that judges should be fearless and thus should be sufficiently independent not to be elected.
"One of the things I find hard to admire about the United States is the system of election of judges ... Justice is not a department of the Kentucky Fried Chicken chain."
However, his concerns are less strong over the government's plans for a judicial appointments commission, but he still maintains that the Lord Chancellor is the best person, within the best system for appointing our judiciary.
Go to the latest edition of The Commission
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PRESENTER |
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| Nick Ross |
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Nick Ross is one of Britain's best-known factual broadcasters.
He has fronted Crimewatch since its inception in 1984 and has presented a wide sweep of the BBC's journalism in news, including rolling news, current affairs, politics, law, crime and consumer issues.
His credits include several eponymous programmes including Nick Ross, a highly praised series of talk shows (1999), Westminster with Nick Ross (live television coverage of parliament, 1994-1997) for which he was a member of the Downing Street lobby, and in 1997 he was named 'Broadcaster of the Year' for his long-running Radio 4 programme Call Nick Ross (1986-1997).
In 1999 he won a best documentary prize for a controversial and autobiographical TV history of the troubles in Northern Ireland, We Shall Overcome.
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