What rules should govern the appointment of judges? - Conor Gearty's challenge

VERSION 1:

Separation of powers is a fundamental principle of our democracy. Power is divided between the legislature (parliament), the executive (government) and the judiciary.

What rules should govern the appointment of judges?

  • Should we set a minimum age for appointment to judicial office?
  • Should we set a minimum level of experience for appointment to judicial office?
  • Should those who are appointed to judicial office be required, under the constitution, to have formal legal training?
  • How long should a judge remain in office?
  • If we were to have judicial terms of office, how many terms should a judge serve in office?
  • Should there be a mandatory retirement age for judges? 

 

VERSION 2:

  • The requirements for appointment to judicial office, including age requisite levels of experience shall be decided by parliament.
  • Members of the judiciary shall have formal legal training. 
  • Members of the judiciary, once appointed, may stay in office until such time as they wish to resign their position. There shall be no upper age limit on holders of judicial office. 

Please comment, vote and let us know what you think.

 

Thanks,

The ConstitutionUK Team 

edited on Apr 10, 2015 by ConstitutionUK

Tom Austin Apr 12, 2015

Mmmmmmm...The notions of regular training and competency checks, and the role of the 'head' of the Judiciary in both, has left something of a hole.

Malcolm Ramsay Apr 12, 2015

"Members of the judiciary shall have formal legal training"

I think this might rule out people who would actually make very good judges (formal training, in any field, often makes it hard to go beyond the limitations of current thinking). I'd prefer something like: Members of the judiciary shall have demonstrated competence in legal thinking.

Rob G Apr 12, 2015

Malcolm, could you suggest how someone would acquire that sort of competence without formal training? I'm struggling to think of such a situation...

Tom Austin Apr 12, 2015

Yes, I think there is a 'qualitative' difference between 'Judge' and 'chairs' of lower courts. It would take a great deal of 'learning' to overcome a lack of experience through not having been called to the Bar. [Not having practised, that is.]

Malcolm Ramsay Apr 12, 2015

I'm not suggesting it would be anything other than extraordinary, Rob, but I think it would be foolish to constitutionally exclude someone who acquires the necessary competence through informal study. To my mind, a feel for legal principle is more important for a judge than detailed knowledge of the law (which can be provided by support staff) but that's something which formal training can't be relied on to provide – and may even inhibit.

As to how such people might demonstrate competence, in my 'Duty to maintain the integrity of the law' idea – https://constitutionuk.com/post/85031 – I suggested a forum (possibly something like this one) where people could discuss problematic law and debate possible reforms. I'd expect a forum like that to attract the kind of people who would make good judges, possibly including some who would not have any formal legal training. If the judiciary wanted to appoint someone who had proved themselves there, I see no sense in obliging them to either seek a change to the constitution, or (more likely perhaps) find a way around the provision, in order to do so.

View all replies (3)

Ian Hodgson Apr 16, 2015

Judges are fallible like other humans and therefore make mistakes. Judges should be subject to ongoing review of their performance. Like other professions they should have a job description and be expected to submit to peer review of their performance perhaps by an independent inspection team- they may not like it but Drs and teachers are subject to the same regime!  Given recent custody battle in my in laws family the case dragged on for nearly 3 years not because the case was overly complex but judges hadn't rend the notes and adjourned the case wasting everybody else's time. If it not acceptable for a teacher to go into a class without preparing a lesson or a Dr to administer medications without consulting their patients notes then likewise it is unprofessional for a judge to adjourn a case because they haven't read the notes. There should be a procedure where a judges conduct is kept under review!

Tom Austin Apr 16, 2015

Yes IanH, there should be on-going training and competency checks.

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