Graham Gee and Kate Malleson: Judicial Appointments, Diversity and the Equal Merit Provision

This is posted on behalf of Graham Gee and Kate Malleson and originally appeared on the UK Constitutional Law Association Blog.

One of the changes introduced by the Crime and Courts Act 2013 was to amend section 63 of the Constitutional Reform Act 2005, which provides that the Judicial Appointments Commission (JAC) must select candidates for judicial office ‘solely on merit’. Schedule 13 of the 2013 Act clarified that making selections solely on merit does not prevent the JAC from recommending a candidate on the basis of improving diversity on the bench where there are two candidates of equal merit. This is variously known as the ‘equal merit’, ‘tie-break’ or ‘tipping point’ provision and derives from s 159 of the Equality Act 2010. After a consultation exercise last summer, the JAC last month published its policy on how it will implement the equal merit provision. In this post, we draw on research conducted as part of an AHRC-funded project on The Politics of Judicial Independence to explain why the JAC’s policy is disappointingly cautious, limits the prospect of further progress on diversity and offers further evidence of what we believe is the excessive judicial influence on judicial appointments 

Context

We begin with some words of praise for the JAC. Since its creation in 2006, the JAC has inter alia devised: robust processes that have for the most part identified suitably qualified candidates of good character; addressed problems that were an early feature of those processes (e.g. delays); and over time has fostered the confidence of the key stakeholders (i.e. ministers, judges and practitioners). It has done this all of this whilst becoming a leaner and more efficient operation in an age of increasingly scarce public resources. Between 2009-10 and 2014-15, its budget is projected to have fallen from £7.6m to £4.85m, its staff from 105 to 67, and yet the number of recommendations for judicial office that the JAC has made has risen from approximately 450 to 750 a year. These are important accomplishments that have helped to secure the JAC’s position on the institutional landscape, something that was much less certain around 2008-09 when the then Lord Chancellor, Jack Straw, considered abolishing the JAC and either bringing appointments back in-house or delegating more responsibility to the senior judges. Much credit is due to the leadership team of Christopher Stephens as Chair and Nigel Reeder as Chief Executive, who since 2011 succeeded in fostering much more constructive and cooperative relationships with the JAC, the senior judiciary and the Ministry of Justice.

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