Tag Archives: judicial appointments

Colm O’Cinneide and Kate Malleson: Are quotas for judicial appointments lawful under EU law?


In April 2014 Sadiq Khan, Shadow Secretary of State for Justice, asked Karon Monaghan QC and Geoffrey Bindman QC to review the options for a future Labour Government to improve diversity in the judiciary. On November 6th their report, entitled ‘Judicial Diversity: Accelerating change’, was published. Starting from the premise that ‘[t]he near absence of women and Black, Asian and minority ethnic judges in the senior judiciary is no longer tolerable’, it proposes a range of recommendations designed to speed up the glacial pace of change. Perhaps the most controversial of these is for the introduction of a quota system for women and BAME candidates. The report reviews the use of quotas in other UK institutions as well as their use in judicial appointments processes around the world, before addressing the question of whether such quotas would be lawful under EU law. This is a key question: EU law casts a long shadow in this context, as the Monaghan and Bindman report makes clear, given that any legislation enacted in Westminster to give effect to a quota system in the process of judicial appointments must conform to the requirements of EU law.

There are two stages involved in any legal assessment of the proposed quota measures under EU law. The first is whether holding a judicial office is classified as being ‘employed’. If the answer is no, then the question of their legality under EU law does not arise as appointments to judicial office will not fall within its scope of application. If the answer is yes, then the judicial appointments process will qualify as ‘access to employment’ which will bring it within the scope of Article 1 of the Recast Gender Equality Directive 2006/54/EC. This will mean that the use of positive action measures, such as quota systems, in the process of judicial appointment will have to conform to the restrictions on the use of such measures set out in the relevant case-law of the Court of Justice of the EU (CJEU).

In the 2012 case of O’Brien v Ministry of Justice, the CJEU indicated that it was a matter of national law as to whether judges should be classified as being in an employment relationship, but made it clear that their status would have to be ‘substantially different’ from that of employees before the relevant provisions of EU employment law would not apply – in this case, the Directive relating to the treatment of part-time workers. Subsequently, when this case was remitted back to the national courts, the UKSC decided that Recorders were in an employment relationship and therefore the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applied. Although Recorders work on a part-time, fee-paid basis and are not permanent judges, the logic of the Supreme Court’s approach in O’Brien would suggest that a similar approach would be applied in general to their full-time, salaried equivalents, who are therefore likely to be classified as being in an employment relationship for the purposes of national and EU employment law.

However, a different conclusion could be reached in respect of Supreme Court Justices, given their particular constitutional role. In many European states, constitutional court judges are not considered to be employees: the view is taken that such a status would be incompatible with their status as holders of a high office of state. Furthermore, as the report makes clear, sensitivity surrounds the issue of whether EU law can or should impact on national constitutional arrangements relating to the status of constitutional courts. These considerations suggest that both the UKSC and the CJEU might be reluctant to hold that the Supreme Court was subject to EU employment law. It would certainly have been very unlikely that members of the Appellate Committee of the House of Lords would have been deemed to be in an employment relationship. The same view could be taken of the Supreme Court given that its role has not significantly changed, despite no longer being structurally part of the legislature. (The interesting question of whether the Supreme Court could legitimately decide whether its own members are employees or not will have to be left to a future blog post, if and when the issue arises).

The current position therefore seems to be that, while O’Brien does not settle this issue definitively, it is likely that members of the judiciary in general will be regarded as ‘employees’ for the purposes of EU law: the status of Supreme Court judges remains less clear. In turn, this means that the provisions of EU gender equality law, in line with the provisions of Article 1 of the Recast Gender Equality Directive 2006/54/EC, would apply to conditions of ‘access’ to that employment, including the judicial selection process.

If so, this gives rise to the question of whether quotas for women and BAME candidates would be lawful within the framework of EU gender equality law. The Monaghan and Bindman report concludes that they would. Given that European law in this context is relatively unsettled and that no cases have been considered by the CJEU specifically on quotas for judicial appointments, some elaboration of the report’s conclusions is required.

The legitimacy of positive action involving preferential treatment of women is well recognised in EU law, as reflected in the provisions of Article 157(4) of the TFEU (formerly Article 141(4) TEU) and Article 3 of the Recast Gender Equality Directive 2006/54/EC.  It is generally accepted that such preferential treatment will be lawful if it is justified and proportionate – i.e. the usual proportionality test is applied. However, the CJEU initially took a restrictive approach in applying the proportionality test in this context, ruling in the case of Kalanke in 1995 that quota systems involving automatic preference for female candidates constituted a violation of the principle of equal treatment as between men and women. In the case of Abrahamsson in 2000, the CJEU similarly ruled that preferential treatment can only be applied to compensate for existing disadvantage as a ‘break factor’ between ‘equally qualified’ candidates, and that an individual merit ranking system has to be initially applied to rank candidates before any automatic preference could be given to members of an underrepresented group. However, this case law has attracted strong academic criticism for imposing excessive constraints on the use of positive action. (See in general C. O’Cinneide, ‘Positive Action and the Limits of the Law’ (2006) Maastricht Journal of European and Comparative Law 351-365.) More recently, the Court has not applied the proportionality test in such a restrictive manner in relation to other situations where women benefited from preferential treatment designed to compensate for established inequalities. For example, in the case of Lommers in 2002, the Court considered that a child care scheme which gave priority to women was compatible with the principle of gender equality, on the basis that the scheme in question was intended to address the under-representation of women.

As such, the legal position in EU law relating to positive action measures designed to redress under-representation of women remains unsettled. The same is true as regards positive action measures directed towards addressing the under-representation of BAME groups: no European case-law exists on this point yet.

However, as noted in the Monaghan and Bindman report, the CJEU in assessing the proportionality of a quota system being used in the UK judicial appointments process is likely to take into account the continued lack of progress on diversity in this context, as evidenced by the recent Council of Europe statistics which show the three UK judiciaries languishing at the bottom of the league table for the proportion of women judges – beaten to the bottom only by Azerbaijan and Armenia. This context makes it more likely that the CJEU would be prepared to uphold a quota scheme as a proportionate response to this ongoing problem, especially given the failure of other less radical policy approaches to address the problem of female and BAME under-representation in the senior ranks of the UK judiciary. It is also arguable that the special constitutional and social importance of the judicial selection process might lead the CJEU to depart from the stricter Abrahamsson approach and to adopt the looser standard of review adopted in Lommers, especially given its preference for non-intervention in national constitutional issues.

To summarise: If judicial selection falls outside the scope of EU law, then it has no effect on any quota system. However, if, as is likely, judicial selection (at least in respect of appointments below the level of the Supreme Court) comes within the scope of EU law, then the legality of the quota system will depend on whether the CJEU adheres to the restrictive approach it adopted in Kalanke and Abrahamsson, or whether it adopts a looser, more accommodating standard of review as it did in Lommers. Given the particular context of the judicial appointments process and the growing trend across Europe to adopt positive action measures to promote greater diversity in public institutions it is likely that gender and BAME quotas for judicial selection in the UK, if carefully designed, will be lawful under EU law.

Colm O’Cinneide is a Reader in Law at University College London.

Kate Malleson is Professor of Law at Queen Mary, University of London


Suggested citation: C. O’Cinneide and K. Malleson, ‘Are quotas for judicial appointments lawful under EU law?’ UK Const. L. Blog (12th November 2014) (available at http://ukconstitutionallaw.org)


Filed under European Union, Judiciary

Andrew Lynch: Judicial Appointments in Australia – Reform in Retreat

AndrewThe creation of formal processes governing the appointment of judges has been a notable element in the broader project of constitutional reform in the United Kingdom over the last 16 years. As is frequently acknowledged, the changes introduced by the Constitutional Reform Act 2005 were that rare thing – an instance of the executive relinquishing power. But the legislation also appeared to stimulate much more debate about the selection and composition of the judiciary than it resolved. Enactment is more typically seen as the culmination of public discussion about the desirability and design of a reform. What has been fascinating – at least from the perspective of external observers – is the way the significant measures implemented in 2005 have remained under the microscope, being the subject of sustained academic commentary, government and parliamentary review and then fine-tuning through passage of the Crime and Courts Act 2013. The announcement in April that, even after all this, the Labour opposition was open to the use of quotas to hasten the diversification of the United Kingdom judiciary signaled that the whole matter of appointments remains extremely contentious.

Participating in unremitting constitutional debates can undoubtedly prove rather fatiguing, but spare a thought for those of us in jurisdictions where reform is not just both slower and more modest, but is then later reversed. Australia’s recent experience in judicial appointments reform has followed this disappointing trajectory. This is despite political rhetoric in this country consistently echoing the United Kingdom’s fidelity to ‘merit alone’ as the basis for selection albeit accompanied by recognition of the need to enhance judicial diversity. In this post I describe these developments before identifying some features of the short-lived reforms which offer an interesting contrast with the United Kingdom approach. Specifically, the provision of a shortlist of suitable candidates to the Commonwealth Attorney-General was seen as entirely uncontroversial. It arguably affirmed a more inclusive understanding of ‘merit’ in this jurisdiction, under which the preservation of ultimate executive discretion was appreciated as a legitimate means for the achievement of greater diversity.

The traditional approach of the Commonwealth of Australia to judicial appointment was one purely of executive discretion lacking any stipulated criteria and any formal or open process. Beyond an eligibility threshold of judicial service or enrolment as a legal practitioner for not less than 5 years (and in the case of appointment to the Family Court of Australia, a requirement that a person shall not be appointed unless ‘by reason of training, experience and personality, the person is a suitable person to deal with matters of family law’), there is no statutory guidance offered as to the necessary attributes of a candidate. The only procedural requirement applies exclusively to vacancies on nation’s final court – the High Court of Australia. This is merely an obligation that the Commonwealth Attorney-General will ‘consult’ with his or her State counterparts before filling a vacancy on that Court.

Shortly after coming to office in late 2007, the Attorney-General in the Labor government, Robert McClelland, announced that he would be introducing more formal processes for appointing individuals to the ranks of the federal judiciary. The catalyst for his doing so undoubtedly included, but was not limited to, developments in the United Kingdom. But additionally, there had been reform in some of the states in the Australian federation, as well as attention to the issue in both New Zealand and Canada.

McClelland’s objectives in unveiling the reforms were later repeated in the government’s 2010 publication Judicial Appointments – Ensuring a strong, independent and diverse judiciary through a transparent process. Their purpose was to ensure:

  • greater transparency, so that the public can have confidence that the Government is making the best possible judicial appointments
  • that all appointments are based on merit, and
  • that everyone who has the qualities for appointment as a judge or magistrate is fairly and properly considered

That document also stated:

The Government is pursuing the evolution of the federal judiciary into one that better reflects the rich diversity of the Australian community. To this end, the Government seeks to increase the diversity of the federal judiciary in relation to:

• gender

• residential location

• professional background and experience, and

• cultural background.

The three pillars of McClelland’s reforms may be succinctly identified as: (1) the articulation of publically available criteria; (2) the advertisement of vacancies and call for nominations; and (3) the use of an Advisory Panel (comprising the head of the relevant court or their nominee, a retired judge or senior member of the Federal or State judiciary, and a senior member of the Attorney-General’s Department) to assess potential candidates, possibly through interviewing them, before making a report to the Attorney-General listing those found to be ‘highly suitable for appointment’.

While the stated criteria had much in common with those used in the United Kingdom, the similarities between the two jurisdictional approaches do not extend much further. First, and most fundamentally, the changes were not legislated. Second, no Judicial Appointments Commission was created. Although McClelland initially professed an open mind on the need for such a body, at the same time he expressed concern that the United Kingdom’s JAC was ‘overly bureaucratic and the whole appointments process is unreasonably intrusive as well as taking too long’. This led to suspicions that ‘the best candidates have not put themselves forward’. McClelland’s negative assessment of the JAC was probably unfair given the size of the task that lay before the organisation upon its establishment and how little time had yet passed. More recent assessments from United Kingdom commentators portray the factors raised by the Commonwealth Attorney-General as teething problems since resolved.

Third, the Advisory Panel was, at just three members, small and contained no lay representatives. Fourth, the Panel was able to recommend a number of names to the Attorney-General for consideration, leaving him or her to make the final selection. This stands in stark contrast to the requirement in the United Kingdom that the JAC or, in the case of appointments to the Supreme Court, a specially-convened commission, furnish only one name recommended for appointment. Fifth, whereas the United Kingdom acknowledged the special status of its final court through adoption of a distinct process, the High Court of Australia (along with the appointment of heads of the other three federal courts) was simply exempt from the McClelland reforms on the basis of its ‘different status’. Nominations were not called for and nor was an Advisory Panel of any sort convened, although the Attorney-General undertook to consult with a number of stakeholders beyond the mandated State Attorneys. It was unclear what weight, if any, was accorded to the explicit criteria in respect of such appointments.

The basic features of the new system received the bipartisan endorsement of the Senate Legal and Constitutional Affairs Committee in its 2009 inquiry into the Australian Judiciary. McClelland’s two Labor successors as Attorney-General made judicial appointments in accordance with the reforms. However, the Attorney-General in the new Coalition government, Senator George Brandis QC, appears to have entirely discontinued those measures and reverted to the traditional approach of unfettered executive discretion. With neither fanfare nor warning, all trace of the processes initiated by McClelland slipped from the departmental website. On the topic of court appointments, the Attorney-General’s Department now simply advises that, ‘As the nation’s first law officer, the Attorney-General is responsible for recommending judicial appointments to the Australian Government.’ On 14 April 2014, the Attorney-General issued a media release announcing his first appointment to the federal judiciary. The vacancy on the bench of the Federal Court of Australia had not been advertised on the website, nor was there anything in the media release suggesting that the appointment was the outcome of any particular process.

The revival of smog-like opacity around federal judicial appointment processes has not gone unremarked, with concerns voiced about the consequences for efforts to improve judicial diversity. Justice Ruth McColl of the New South Wales Court of Appeal has said of the reversion that ‘any move that strips away progress towards greater equality of judicial appointment is, at the very least, highly problematic’.

The McClelland reforms were obviously relatively modest when compared to those of the United Kingdom. But they were certainly an advance on the customary practice. Brandis’ rejection of them is curious not only because the new process hardly constrained his power of selection to an intolerable degree, but also because he had participated in the 2009 Senate inquiry which gave its approval to the reforms. Indeed, that committee urged greater transparency upon the Attorney-General at the time – including ‘making public the number of nominations and applications received for each vacancy and, if a short-list of candidates is part of the process, to make public the number of people on the short-list’ (Recommendation 3).

While readers in the United Kingdom might sympathise with the view that this retreat from transparency and process is to be lamented, some may, nevertheless, be doubtful about the capacity of the measures introduced by McClelland to promote judicial diversity. After all, in 2012, the House of Lords Select Committee on the Constitution was emphatic in rejecting the view of a number of witnesses who appeared before it to submit that shortlists would facilitate a swifter diversification of the judiciary. The Committee did so because, as it said, ‘unless a Lord Chancellor is committed to the promotion of diversity, the use of shortlists could have the reverse effect of reducing the diversity of the judiciary.’ That outcome is obviously possible but perhaps questionable, given broad political acknowledgment of the need for the judiciary to be more representative. Certainly it seems just as likely that diversity might be thwarted by giving serving judges too much influence over appointments, risking the self-perpetuation of the judicial class in its own image, as highlighted by Professor Alan Paterson and Chris Paterson in their report Guarding the guardians?.

Professor Kate Malleson wrote on this blog in 2012, the use of a shortlist ‘would allow for an appropriate degree of political input in the process and would open space for the Lord Chancellor to promote greater diversity though his choice of candidates while maintaining selection on merit’. That appears to have been exactly how the use of shortlists worked in Australia for appointments to the federal courts other than the High Court. The government described the Attorney-General’s role in the process as ‘identifying a preferred candidate’ from the names forwarded to him or her by the Advisory Panel. While the Senate Committee agreed that the final decision was appropriately left with the executive, it was searching in respect of how that determination was made:

If the Attorney-General identifies the most suitable person based on their assessment against the selection criteria then it is desirable for this to be articulated. On the other hand, if the Attorney-General is not willing to state that selection is directly based on the selection criteria then this should also be articulated.

While the government was apparently not prepared to risk the political danger of divorcing itself from the rhetoric of making appointments ‘solely on merit’, if everyone on the shortlist has been judged sufficiently meritorious by the Advisory Panel then clearly some other factor is the ultimate determinant. In light of the government’s stated commitment to enhancing the diversity of the federal judiciary it is not hard to imagine that the candidates’ other attributes entered the equation. Some explicit support for this conclusion is discernible from an examination of some of the announcements of new appointments made under the reformed system – with the individual’s contribution to the diversification of the bench being occasionally acknowledged by the Attorney-General.

While judicial appointments reform in Australia has gone backwards, perhaps some aspects of it offer a useful perspective on live questions in the United Kingdom debate. In particular, the way in which ‘merit’ is generally conceived is startlingly different. The House of Lords declared that shortlists were basically antithetical to the principle of appointment on merit – a view not taken by members of the Australian upper house nor voiced in a single submission from the judiciary, legal professional associations or academics to that chamber’s inquiry.

The recent amendment to the Constitutional Reform Act providing that diversity considerations may be used to determine which name goes forward ‘where two persons are of equal merit’ has been welcomed but there are concerns as to the difference it will make in practice. To Australian eyes that scepticism appears well-founded since the ‘equal merit’ provision still reflects an insistence not only that the quality of potential candidates may be objectively measured, but that this enables persons to be ranked with some exactitude. Accordingly, a dead-heat must be anticipated as unlikely – and the statute simply does not countenance merit as something that might relevantly be possessed more widely than just two individuals.

Contrast this with the candid remarks in 2008 of Stephen Gageler SC, then Solicitor-General of the Commonwealth and since appointed to the High Court of Australia:

… [A]t any time there would be fifty people in Australia quite capable of performing the role of a High Court justice. My perception is that the pool gets proportionately wider the further down the judicial hierarchy you go… The notion that appointment can only validly be based on ‘merit’ is naïve.

McClelland’s reform of judicial appointments in Australia did not reject the rhetoric of ‘merit’ as the ultimate justification for selection of individuals to serve in the federal courts. But the design of those processes effectively signalled that while merit was essential, it was not the exclusive consideration. Although those reforms have now been undone, it is to be hoped that as a result of their five years’ operation, the government cannot completely retreat behind ‘naïve’ explanations as to why one individual is chosen for judicial appointment from amongst others possessing equivalent qualifications, expertise, and professional skills.


Andrew Lynch is a professor and Director of the Judiciary Project at the Gilbert + Tobin Centre of Public Law at the University of New South Wales, Australia.

(Suggested citation: A. Lynch, ‘Judicial Appointments in Australia – Reform in Retreat’ U.K. Const. L. Blog (26th May 2014) (available at http://ukconstitutionallaw.org/).

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

graham-gee-webmalleson-photo-2010One 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.


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.

All that said, we remain concerned, like many others, by the relatively slow progress in increasing judicial diversity. It is true that women constitute around 40% of the nearly 3,500 recommendations made by the JAC between 2006 and 2013, with BME candidates around 10%. It is also true that some recent selection exercises have seen women appointed to senior roles: for example, in 2013, five out of the 14 recommended for the High Court were women, while three women filled 10 spots on the Court of Appeal. Given the exceptionally small number of women in the senior judiciary, this might be deemed slow but steady progress; or as a senior judge put it to us, it might be thought that ‘the dam has broken’. But change has been slower than expected, and improvements have largely been concentrated in the lower ranks, and particularly in non-legal tribunal appointments, with the upper ranks of the judiciary remaining substantially untouched. The JAC chair himself acknowledged in March in evidence to the Justice Committee that he was ‘absolutely certain’ that there would not be an equal representation of women on the bench within five years. It is against this backdrop that the JAC’s policy on equal merit is so disappointing.

Equal Merit Policy

The JAC manages a highly formal selection process involving advertising, short-listing by tests or paper sifts, interviews and, for some vacancies, presentations or role-playing. For each vacancy, the JAC must recommend a single candidate to the Lord Chancellor, Lord Chief Justice or Senior President of Tribunals, depending on the vacancy. Under its new policy, where two or more candidates are assessed as having the skills, experience and expertise that result in them being considered equal when assessed against the selection criteria, the JAC may apply the provision ‘to give priority to the candidate with declared protected characteristics which are the least well represented in the office to which they are being recommended for appointment’. In devising this policy, the JAC faced two critical questions. First, should the provision apply to all stages of the selection process, including short-listing, or just once at the final stage where the JAC makes its recommendation? Second, to which groups of people should the equal merit provision apply? The JAC answered both questions very narrowly, adopting what its chair has conceded is ‘a fairly minimalist’ approach.

The JAC will apply the provision only at the final selection stage. This blunts the provision’s potential to increase diversity. As we see it, the premise that there may be candidates exhibiting different strengths and weaknesses who are considered of equal merit is relevant to short-listing and final selection. Applying the provision at short-listing could help remove barriers that might prevent non-conventional candidates being called for interview. The JAC has further limited the provision’s potential by applying it only to race and gender. It has done so on the grounds that the provision should only be used where under-representation can be demonstrated by reference to published data. We recognize there are practical difficulties related to the availability of reliable data for some of the ‘protected characteristics’ under the Equality Act 2010. However, the JAC needs to be more proactive in widening the number of protected groups to whom the equal merit provision can apply. This means collecting reliable data for groups other than race and gender. We further recognize that collecting personal data can be problematic; for example, many applicants in the judicial appointments process seem reluctant to disclose personal data. But this is a problem with which many organizations are grappling as they implement important equality and diversity legislation. The JAC needs to devote more time and resources to being a pioneer on such matters rather than reacting to developments elsewhere. A more pioneering and proactive approach would be consistent with the JAC’s duty to ‘have regard to the need to encourage diversity in the range of persons available for selection’.

Several commentators question whether the provision will make much difference to the composition of the judiciary. In particular, some doubt whether there really will be many occasions where two or more candidates are deemed equal, all things considered. After all, the JAC’s Chair suggested in late 2011 that there had been no two broadly indistinguishable candidates out of the 500 recommendations made by the JAC since he assumed office earlier that year. If it is indeed the case that the JAC is always able to distinguish between candidates, then it would be unsurprising if many were to agree with Alan Paterson and Chris Paterson that the equal merit provision ‘runs the risk of marking merely another positive headline backed by very little positive impact in terms of addressing the glaring diversity deficit’. However, we prefer the position of the former JAC Vice-Chair, Lady Justice Hallett, who has suggested that it is not ‘as rare as people think that you have candidates who are equally qualified’. To grasp the potential of the equal merit provision requires a certain attitude—and perhaps a change of attitude amongst some currently serving on the JAC—about the type of assessments made by selection panels when faced with candidates with different but commensurable judicial qualities.

In short, the provision has the potential to be a useful tool to address the diversity deficit. However, as narrowly interpreted by the JAC, the equal provision is likely to have very little impact. If the JAC was strongly committed to using it in its full extent, was willing to apply it at more than one stage of the selection process, and to apply it to a wider range of protected characteristics, the provision could make a difference. The decision to use it in this very limited way is ultimately a political decision about the weight given to diversity. The question that arises is this: why is the JAC seeming to place so little weight on the issue of diversity?

Judicial Influence on Judicial Appointments

On our reading, the JAC’s extremely narrow policy on the equal merit provision is potential evidence of the excessive judicial influence on judicial appointments. We have pointed to the high—and, in our view, too high—levels of judicial influence on JAC-run selection processes in previous posts on this blog; see here and here. In a forthcoming book (with Robert Hazell and Patrick O’Brien), we argue that although senior judges acknowledge the lack of diversity, and seem genuinely keen to see change, they have for the most part resisted initiatives that are designed to bring about a much faster transformation. We also argue that over time, and over several different issues, the JAC has become less willing to challenge senior judges over this. As one of our interviewees put it, the senior judges are ‘very effective’ in achieving their ‘desired outcomes’ when interacting with the JAC.

We suspect that the policy on the equal merit provision is a further product of the high levels of judicial influence on the judicial appointments processes. Over half of the responses to the JAC’s consultation exercise on the equal merit policy were from judges and their representative bodies. There were also lengthy discussions in private between the JAC, the senior judges and the Ministry of Justice. Possible evidence of the influence of judicial concern about equal merit can be seen in the comments of the JAC Chair in his evidence before the Justice Committee: ‘[t]here is serious caution among many…the stakeholders…are cautious about [the equal merit provision]’. If we are correct in suspecting that judicial caution is largely responsible for the JAC adopting such a narrow policy on equal merit, then this merely underscores that the challenge confronting the appointments system in the years ahead is less the threat posed by inappropriate ministerial interference, but the cumulative consequences of excessive judicial influence.


The JAC will report the number of occasions the equal merit provision is applied in its twice-yearly Official Statistics Bulletin. It has also committed to keeping the provision under review. We welcome this. And plainly, the proof of the pudding will be in the eating, and even the JAC’s narrow policy may have more of an impact than we predict. On the basis of the narrowness of its policy, however, there is reason to suspect that this may prove to be another missed opportunity for the JAC to send a strong signal of the importance it attaches to diversity.

Graham Gee is a lecturer at the University of Birmingham and Kate Malleson is a professor at Queen Mary. Together with Robert Hazell and Patrick O’Brien from the Constitution Unit at University College London, they recently completed an AHRC-funded project on “The Politics of Judicial Independence”.


(Suggested citation: G. Gee and K. Malleson, ‘Judicial Appointments, Diversity and the Equal Merit Provision’ U.K. Const. L. Blog (6th May 2014) (available at: http://ukconstitutionallaw.org)).

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Robert Leckey: Constitutionalizing Canada’s Supreme Court

Professor Robert Leckey CROSS-POSTED FROM THE I.CONNect BLOG.

A dispute over the legality of a politically questionable judicial appointment has resulted in what pundits call a stinging defeat for Canada’s prime minister and a bold assertion by the Supreme Court of Canada of its independence and constitutional status.

Recently, in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, the Court advised that Conservative Prime Minister Stephen Harper’s appointment of the Honourable Mr. Justice Marc Nadon to the Supreme Court of Canada was void. He had been sworn in five months earlier. On a six-judge majority’s reading of the Supreme Court Act, Justice Nadon was unqualified to fill one of three spots reserved for jurists trained in the law of Quebec. Quebec is the federation’s sole civil-law jurisdiction and the only province with a French-speaking majority.

In addition, the Court opined that the Parliament of Canada’s ex post amendments to the Supreme Court Act purporting to clarify that Justice Nadon was eligible were unconstitutional. They amounted to a constitutional amendment requiring the unanimous consent of Parliament and all provinces.

While many had criticized the political wisdom of the prime minister’s selection of a semi-retired judge on nobody’s shortlist, the constitutional issues turn on the interpretation of the Supreme Court Act and of the country’s constitutional amending formula.

General qualifications for appointment appear in section 5 of the Supreme Court Act. It refers to current and former judges and to a person who “is or has been” a lawyer of at least ten years standing at the bar of a province. The controversy bore on section 6’s specification that three justices be drawn “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Justice Nadon came instead from the Federal Court of Appeal. Although formerly a member of the Quebec Bar for more than ten years, he was no longer a member. Using a process set out in the Supreme Court Act, the federal executive referred questions to the Court for its opinion.

The validity of the initial selection of Justice Nadon turned on the relationship between the Act’s general and specific provisions and the significance, if any, of the different wording in sections 5 and 6 (“is or has been,” “among”). The majority of the Court concluded that Quebec appointments needed to be current judges of the named Quebec courts or current members of the Quebec Bar. Those judges stated the primary basis for their decision to be the Act’s plain meaning and the differences in wording. A single judge dissented.

It is striking for an apex court—even when the government asks it to weigh in—to reject an appointment to its ranks on the basis that the government had misinterpreted the relevant statute. But the Court went further. It grounded a formalistic exercise of statutory interpretation turning on the niceties of “is or has been” versus “among” in the historic compromise guaranteeing one-third of the Court’s judges to Quebec. For the majority justices, their interpretation of section 6 advanced the “dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court,” maintaining that province’s “confidence” in the Court (para. 18).

Exaggerating the opinion’s political salience would be difficult. At a moment when Quebec is governed by a separatist party, and less than three weeks before Quebecers vote in a provincial general election, the Supreme Court of Canada explicitly declared itself to be an institution that guarantees a voice for Quebec’s “social values” in federal institutions. Commentators read the entire judgment as a declaration of the Court’s independence from a prime minister and executive perceived as disdainful towards democratic institutions and tone-deaf regarding Quebec. By implication, the majority’s reasoning made the choice of Justice Nadon not only formally invalid, but also substantively disrespectful of Quebec. One can speculate on the depth of the majority’s commitment to this substantive point by asking whether it would have upheld the appointment had the federal government named Justice Nadon to an eligible Quebec court the day before appointing him to the Supreme Court.

The opinion’s most enduring contribution, though, arises from its answer to the question concerning Parliament’s attempt to amend the Supreme Court Act. Parliament had created the Court by statute in 1875. The Court did not replace the Judicial Committee of the Privy Council as the federation’s tribunal of last resort for nearly three-quarters of a century. In its final legislative exercise for Canada, the Parliament of the United Kingdom brought into life the Constitution Act, 1982. The latter lists instruments that the Constitution of Canada includes, but does not mention the Supreme Court Act. Nevertheless, the new constitutional amending formula refers twice to the Supreme Court. The Court appears among the “matters” amendable by Parliament with the consent of a majority of provinces. Its “composition” figures among the “matters” amendable only on unanimous consent of Parliament and the provinces.

In opining that Parliament’s attempt to modify the Supreme Court Act to clear the way for Justice Nadon was unconstitutional, the majority stated that reference to the Court’s “composition” in the amending formula constitutionalized sections 5 and 6 of the Act. By implication, it also constitutionalized the Court’s continuing existence, “since abolition would altogether remove the Court’s composition” (para. 91). The majority added that the more general reference to the Court constitutionalized its “essential features … understood in light of the role that it had come to play in the Canadian constitutional structure by the time of patriation” (para. 94). In effect, the amending formula drastically reduced the scope for change to the Supreme Court by ordinary federal statute.

Moreover, the Court confirmed that the sources of the Constitution of Canada now include not only the previously known hodge-podge of royal proclamations, imperial statutes and orders in council, federal statutes, and unwritten principles. Those sources also include parts of another federal statute, the Supreme Court Act—some provisions identified by number as well as whatever might in future be determined to embody the Court’s “essential features.” Indeed, by referring to the “role” that the Court has come to play, the majority judges hint that the Court’s constitutionalized features may not track directly to specifiable legislative provisions, instead arising from practice. Presumably the same applies to other institutions that the amending formula constitutionalized, such as the Senate of Canada, on which the Court will pronounce in due course.

Whatever the political fallout for the prime minister, the Court’s advisory opinion merits careful attention by those who study sources of constitutional law, amending formulae, and how institutions’ constitutional status may change over time.

Robert Leckey is an Associate Professor of Law and William Dawson Scholar at the Faculty of Law, McGill University. He is scheduled to speak in the United Kingdom and South Africa about his forthcoming book Bills of Rights in the Common Law on the following dates in 2014: King’s College London – 12 May; Oxford University – 13 May; Unisa, Pretoria – 15 May; Cape Town – 19 May; University College London – 17 June; London School of Economics – 29 October. Further details for these talks may be obtained from the venues hosting the talks.

(Suggested Citation: Robert Leckey, Constitutionalizing Canada’s Supreme Court, Int’l J. Const. L. Blog, Mar. 25, 2014, available at: http://www.iconnectblog.com/2014/03/constitutionalizing-canadas-supreme-court  or R. Leckey, ‘Constitutionalizing Canada’s Supreme Court’ U.K. Const. L. Blog (1 April 2014) (available at http://ukconstitutionallaw.org/)).


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Alexander Horne: Is there a case for greater legislative involvement in the judicial appointments process?

Alexander HorneThe dramatic increase in public law and human rights cases coming before the UK Supreme Court (and the Appellate Committee before it) means that the UK’s top court is more frequently determining essentially socio-political questions. In addition, in recent years, the judiciary has pressed for a rather more expansive definition of judicial independence, with a greater emphasis on the institutional independence of the judiciary. This has tended to lead to more powerful leadership roles, for senior judges in particular.

These changes, coupled with a greater focus – by both the judiciary and the executive – on the doctrine of the separation of powers, has resultedin judges taking responsibility for matters which, prior to theConstitutional Reform Act 2005, would most likely have been left to the Lord Chancellor (and his former Department). In the light of this expanding judicial role, now seems an appropriate time to question whether any new mechanisms for increasing political accountability, such as a parliamentary confirmation procedure, are needed for appointment to the most senior judicial offices (including, but perhaps not limited to, the UK Supreme Court, given the growing managerial roles played by the Lord Chief Justice and Heads of Division).

Confirmation processes are often dismissed out of hand – frequently with negative references to the partisan approach seen in the United States of America. Lord Neuberger (then Master of the Rolls) captured the common view of hearings before the USSenate Judiciary Committee, when he observed:

“Once you start muddying the water and involving the legislature in the appointment of judges, you risk going down a slippery slope, not quite knowing where it will end. The last thing that we want is the sort of thing you see in the United States. I do not pretend that it happens with every appointment to the Supreme Court but we all remember interviews and proposed appointments that led to something of a jamboree or a circus. I do not think that we want that.” (Evidence to the House of Lords Constitution Committee, November 2011)

 Of courseviews on the US experience do not go entirely one way. Graham Gee has previously considered whether the lessons drawn by UK commentators are necessarily justified; suggesting that most hearings do not generate political conflict and that in any event, “hearings are not the primary source of the politicization of the process” given the important role that partisan considerations play in the President ‘s nominations for the federal bench. Nonetheless, it must be acknowledged that a knee jerk reaction against the US procedure remains commonplace.

Critics of hearings frequently point to the potential impact on judicial independence. In its report on Judicial Appointments, published in March 2012, the House of Lords Constitution Committee summarised many of the oft-heard objections when it concluded that:

“Parliamentarians should not hold pre- or post-appointment hearings of judicial candidates, nor should they sit on selection panels. Political considerations would undoubtedly inform both the selection of parliamentarians to sit on the relevant committees or panels and the choice of questions to be asked.”

In spite of this, issues around judicial independence and accountability are now receiving more interest from academics and some parliamentarians. The question of whether to introduce parliamentary hearings received some attention during the consideration of theconstitutional reformswhich eventually led to the passage of the Constitutional Reform Act 2005. Scholars such as Keith Ewing and Robert Hazell and the former Permanent Secretary of the then Lord Chancellor’s Department, Sir Thomas Legg QC,argued that nominees for the new Supreme Court could be interviewed or confirmed by Parliament. The Study of Parliament Group published The Changing Constitution: A Case for Judicial Confirmation Hearings?, a short report by this author, in 2010.  Areport by Policy Exchange in 2011 suggested that:

“[A] more radical approach to judicial selection should at least be considered – namely legislative oversight of appointments to the Supreme Court. This would have the advantage of ensuring that judges retained their independence, but would be subject to Parliamentary scrutiny prior to their appointment.” (Policy Exchange, Bringing Rights Back Home)

And in 2012, the think-tank CentreForum published a report by Professor Alan Paterson and Chris Paterson, entitled Guarding the Guardians (the title may give some clue as to their conclusions)

The recently concluded project on the Politics of Judicial Independence, involving the Constitution Unit, Queen Mary and the University of Birmingham, is another good example – posing challenging questions about the balance between judicial independence and accountability – asking“who is now accountable for the judiciary, and to whom?” and “what are the proper limits of judicial independence?”.  Views on the subject of confirmation hearings were splitin a seminar on the subject of Judicial Independence, Judicial Accountability and the Separation of Powers, but a number of potential advantages were identified, including the fact that hearings could enhance the legitimacy of judges. Moreover, recent experience of the introduction of hearings in Canada, addressed in a series of articles (e.g. Peter Hogg, Appointment of Justice Marshall Rothstein to the Supreme Court of Canada, (2006) 44 Osgoode Hall Law Journal 527), suggest that one does not have to emulate the contentious US model.

Following in the footsteps of these earlier studies, the Study of Parliament Group has just published a new research paper, by the author of this post, entitled Is there a case for greater legislative involvement in the judicial appointments process?  It seeks to address some of the conceptual arguments for greater political accountability in the appointment process and also considers the expanding ambit of judicial independence. Focusing on whether parliamentarians should have a role in the judicial appointments process, it asks what is meant by political accountability in the context of judicial appointments and considers what evidence there is that greater accountability is necessary.

The paper examines whether new methods of accountability could be introduced in the UK without impacting on judicial independence, and seeks to shed light on these questions by assessing the recent move by the UK Parliament to introduce pre-appointment hearings for other public appointments. Finally, it evaluates whether such processes are readily transferable and, if so, whether UK parliamentary committees are well placed to undertake this task.

The paper concludes that the introduction of pre-appointment hearings for the most senior judicial appointments would have a number of benefits and could help ensure that independent and robust candidates are appointed.  As to the question of politicisation, it considers that as long as there is a continued role for an independent judicial appointments commission to recruit and screen candidates at first instance, any significant politicisation of the process could be avoided.

Whether recent examples of workable models from the UK, or from other jurisdictions, can convince the senior judiciary of the merits of such a change is clearly open to some doubt. But the author hopes that this new work might nonetheless inform any future debate on these issues.

This blog post is published to coincide with the launch of a new Study of Parliament Group Research Paper on Judicial Appointments.

 Alexander Horne is a Barrister (Lincoln’s Inn) and is currently the Legal and Senior Policy Adviser at the House of Commons Scrutiny Unit. The SPG Paper ‘Is there a case for greater legislative involvement in the judicial appointments process?’ is based on an MPhil thesis undertaken part-time at Queen Mary, University of London between 2010-13.  The views expressed are those of the author and should not be taken to reflect the views of any other person or organisation.

(Suggested Citation: A. Horne, ‘Is there a case for greater legislative involvement in the judicial appointments process?’ U.K. Const. L. Blog (27th March 2014) (available at  http://ukconstitutionallaw.org/).

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Kate Malleson: Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts?

malleson photo 2010Readers will be forgiven for not noticing, but on 8 April 2013 Lord Justice Hughes and Lord Justice Toulson were sworn in as Justices of the UK Supreme Court.

Their appointment, together with that of Lord Hodge (who will succeed Lord Hope when he retires in October 2013), leaves the Court rock bottom of the list Supreme Courts of the 34 OECD (Organisation for Economic Co-operation and Development) countries when it comes to the gender composition of bench. Fifteen new judges been appointed to the court since 2009 when the court opened its doors. All have been male.  Lady Hale remains the only woman ever appointed to the highest court in the land.

It is now well established that there are many barriers to women reaching the higher ranks of the judiciary: from the unreconstructed working arrangements of the legal profession and the bench to the wider social context of the gendered division of labour around caring responsibilities. But all of these barriers are equally present in other countries which have done so much better than us in appointing women to their judiciaries.

Numerous detailed proposals for reform have been put forward in the UK over the last 20 years for encouraging greater diversity on the bench. All of them are necessary but they are not sufficient.  What Adam Wagner has described as an ‘attack of the clones’ continues. In fact, in the last two appointment rounds – though which five Supreme Court Justices were appointed – just one woman sat on the appointing committee.

Ultimately, to change the composition of an institution of power such as the judiciary and to allow in those who are not drawn from the same background as the traditional recruits requires political will. Not just from politicians, but from all the key stakeholders, in this case the judges and the legal profession.

In Northern Ireland after the Good Friday agreement was signed there was political will to change the composition of the bench, in that case to include those from the catholic community. It would no longer have been acceptable for the majority catholic community to be tried by an almost exclusively protestant bench. Quietly and effectively the change was made within a few years. The same political will is evident in countries such as Canada which have transformed their Supreme Court composition in terms of gender. The latest round of appointments to the UK Supreme Court shows that the same political will is lacking here.

The claim – evidenced by these appointments – that after 30 years of women entering the legal profession in large numbers and almost a decade after the first woman was appointed to the House of Lords – we still don’t have enough highly talented women to appoint to the bench is simply incredible. Do we really believe that we are the only country in the OECD that does not have excellent women lawyers fit for our highest courts? They may not look identical to the men who have traditionally been appointed, but they are there. It is time for the discussions, the official reviews and the hand-wringing to stop. It is time for some of these excellent women to be put on the bench where they belong.

Kate Malleson is Professor of Law at Queen Mary, University of London. Equal Justices Initiative is a forum for bringing together academics, practitioners, judges and policy-makers to work towards gender parity on the bench.

Suggested citation: Kate Malleson, ‘ Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts? ’ ,  UK Const. L. Blog (11 April 2013) (available at http://ukconstitutionallaw.org).


Filed under Comparative law, Judiciary

Kate Malleson and Graham Gee: Who should have the final say in lower level judicial appointments?

malleson-photo-2010graham-gee-webThe Crime and Courts Bill is making its way through Parliament. As noted in an earlier post, the Bill proposes to pass responsibility for appointing Circuit Judges and District Judges from the Lord Chancellor to the Lord Chief Justice. This represents a potentially significant power shift in judicial appointments, yet it has attracted very little attention. In this post, we outline some of our concerns.

Current Practice

The Judicial Appointments Commission currently selects a candidate for each vacancy on the Circuit and District Bench. The JAC is required by statute to consult with the LCJ about its proposed candidate. After consultation, the JAC recommends a candidate to the Lord Chancellor, who can accept or reject the recommendation, or invite the JAC to reconsider it. In practice, the Lord Chancellor almost always accepts the recommendation of the JAC, with only 5 vetoes from almost 3000 recommendations since 2006.

Recent Lord Chancellors have exhibited little interest in lower level judicial appointments. Jack Straw, for example, described the Lord Chancellor’s role in such appointments as “ridiculous”. Similarly, Ken Clarke described it as “ceremonial and ritualistic”, explaining that neither he nor his officials in the Ministry of Justice were in a position to “second-guess” the recommendations of the JAC because they did not know the candidates.

As successive Lords Chancellors have retreated from involvement with lower level appointments, the views of the LCJ on candidates selected by the JAC have assumed greater importance. Indeed, it was said that Ken Clarke would only accept a recommendation from the JAC that had first been approved by the LCJ.

It is perhaps not surprising that there was widespread support in response to the government’s consultation paper for transferring the final say in lower level judicial appointments from the Lord Chancellor to the LCJ. Many will have concluded, like the Lords’ Constitution Committee, that the change will “promote the independence of the judiciary and increase public confidence in judicial appointments”. The LCJ, after all, is said to be in a better position to understand the particular requirements of judicial office and, thus, to decide whether a person selected by the JAC should be appointed to the bench. We are less confident, however, about whether this change is welcome. We have three main concerns.

Diluting the Executive’s Role and Responsibility

One of the assumptions driving the proposal is that there is no longer a legitimate role for the executive in lower level judicial appointments. This assumption is questionable. The involvement of the Lord Chancellor injects a critical measure of democratic legitimacy into the process of selecting judges. Equally significantly, it encourages the Lord Chancellor to take seriously his or her statutory responsibility for the operation of the appointment system as a whole. Moreover, if democratic accountability is not channeled through the Lord Chancellor, will the LCJ account directly to Parliament for the operation of lower level appointments? If so, does this pose a greater threat to judicial independence than the involvement of a government minister?

Even if it is argued that at the lower ranks involving the Lord Chancellor is not needed on grounds of democracy legitimacy, the goal of improving judicial diversity demands continued ministerial involvement. Experience in the UK and in other countries shows that improving diversity does not happen automatically as the composition of the legal profession changes. Rather, it needs political will to drive forward changes, some of which might not be supported by judges.  While we welcome the amendment introduced in the Lords to place the Lord Chancellor and the LCJ under a statutory duty to encourage judicial diversity, an amendment that mirrors the existing duty placed on the JAC, we worry that removing the Lord Chancellor from lower level appointments removes the opportunity for the exercise of political will to promote greater diversity in the judiciary at all levels.

Excessive Judicial Influence

In an important report published last year, Alan Paterson and Chris Paterson charted the level of judicial influence in senior judicial appointments. Similar concerns can be voiced in respect of lower level appointments. There are currently 5 judges on the JAC. Before instructing the JAC to begin a selection exercise the Lord Chancellor must consult with the LCJ. Each selection panel includes a judge. Judges draft the case studies that form an important part of the selection process. They write references for applicants. Finally, as noted above, the JAC consults with the LCJ about the candidate that it intends to recommend to the Lord Chancellor.

In other words, judges are already heavily involved in selecting their own colleagues. Shifting the formal decision-making power for lower tiers to the LCJ represents a significant extension of judicial influence in ways that might ultimately undermine, rather than bolster, public confidence in the judiciary.

A Changed Relationship between the JAC and LCJ

The proposal to transfer the veto power to the LCJ did not consider the implications of the LCJ more frequently refusing to accept recommendations from the JAC. We should perhaps expect more vetoes given that the rationale for the reform is that the LCJ will be better able to arrive at an informed evaluation of the JAC’s recommended candidate.

There might also be other reasons why the LCJ and the JAC could disagree about a recommendation. If, for example, the JAC decided to implement the tie break provisions under s.159 of the Equality Act 2010 to increase diversity, and if a future LCJ objected to this approach, we could expect to see the veto used more frequently. If such a scenario did arise, would the decision of the LCJ be subject to judicial review? If so, who would hear such a challenge? If the LCJ’s decision is not subject to judicial review, how, if at all, could it be challenged? Moreover, would the LCJ be required to give reasons for his or her decision?

These questions suggest that there are potential pitfalls which have not been thought through. It would not be surprising if the JAC sought to avoid them by only making recommendations likely to secure the approval of the LCJ. This then underscores our earlier concern – that judges potentially have too much influence in judicial appointments.

Finally, the LCJ has to date served as a guardian of the independence of the JAC. During its rocky first five years, the JAC came perilously close to being abolished by the Ministry of Justice; it experienced what one insider described as “a near death experience”. At the time when tensions between JAC and the MoJ were at their greatest, the LCJ spoke out publicly in defence of the JAC. He could do so without any potential conflict of interest because his role in the judicial appointments process was relatively limited. If in the future the LCJ can exercise a veto over the decisions of the JAC, it may be much more difficult to serve as a reliable guardian of the JAC.

Kate Malleson (Queen Mary) and Graham Gee (University of Birmingham) are collaborating with Robert Hazell and Patrick O’Brien (Constitution Unit UCL) on an AHRC-funded project on The Politics of Judicial Independence.

 Suggested citation: K. Malleson and G. Gee, ‘Who should have the final say in lower level judicial appointments?’ UK Const. L. Blog (30th January 2013) (available at http://ukconstitutionallaw.org)


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