Constitutional Reform Act 2005, URGENT!

Hi guys,

would somebody help me out on the below as i'm bit confused.

"Critically evaluate the effect of CRA 2005 and the effect on Judiciary and Judicial Appointments."

i've to submit my coursework, pls pls help me out.

cheers!

Reply 1

Hooriya Qazal

okay i think am pretty late..errm..but still ill copy paste my essay to u ?..ok

Reply 2

Hooriya Qazal

What have been the criticisms of the selection process for the senior judiciary in England & Wales and it is likely that the reforms introduced by the Constitutional Reform Act 2005 will meet those criticisms?
The constitutional Reform Act 2005 establishes, an independent Judicial Appointments Commission (JAC) to be launched on 3 April 2006. The JAC will select candidates for appointments as judicial office holders in England and Wales by the Queen or the Lord Chancellor(solely on merit). The commission consists of 15 members, 6 of them being lay members, the rest being from the judiciary, tribunal, legal profession. The Act also established an independent Supreme Court, to replace the Appellate Committee of the |House of lords as the highest appeal court in the Uk
In order to see whether this Act has met the criticism of the old selection process for the senior judiciary, we must look into the main problems of the old system. The problems being, the extent to which the appointment system promotes the independence of the judges from political control, second it lacked openness and democratic accountability and third it lacked diversity in the composition of judiciary.
Over the centuries the appointment of judicial posts have seemed to be influenced by political preferences. Griffith states that judges are political. This can be evidenced by this that at the end of 1800's, the conservative Prime Minister, lord Sailisbury, appointed Lord Halsbury as Lord Chancellor, Lord Halsbury immediately began to staff junior and senior ranks of the judiciary with his political allies. Therefore it seemed that the ruling party could influence the composition of judiciary. Under the previous judicial appointments process, the judges of the Court of Appeal and above were chosen by the Queen on the recommendation of the Prime Minister, acting on the advice of the Lord Chancellor. For High Court judges and below, the prime minister played no role and the Queen was advised by the Lord Chancellor directly. In parctise the monarch rubber stamped the decision of her ministers. Traditionally therefore, politicians played a central role in selecting the judges, as the whole appointment process was intimately tied to the political system through the involvement of the Lord Chancellor, who carried the main responsibility of all judicial appointments. Moreover people were not aware exactly how the different Prime Ministers and their Lord Chancellor had been going about deciding between different candidates, whether for e.g a shortlist of names is provided by the Lord Chancellor. The dangers of possible political manipulation the pervious system was clear, particularly in the light of the growing political role of the judge. During the 1990's Sir Ian Glidewell concluded that the Lord Chancellors powers to appoint judges should be removed. The report argued that the growing role of the High Court judges in scrutinizing executive action meant that it was 'politically unacceptable for senior judges to be appointed by a member of the executive.
The second problem; the selection of judges by politicians provides an elements of accountability by maintaining the link between the judiciary and elected representatives. Although the Lord Chancellor, has to date been a member of the House of Lords and therefore not elected, he ahs at least been part of the political system and is answerable to Parliament. The various means of ensuring public accountability in the judicial appointments process can only be effective if the system itself is open to scrutiny, which was not. There was a lack of transparency in the appointment and the consultations process. The process was where the opinions of judges and senior lawyers are sought on the suitability of the applicants. The consultation process is the heart of the system and no candidate will be appointed without a significant body of support among the consulters. This process is described as a 'secret sounding system' by which those already on the bench can promote those they know, excluding the equally competent candidates outside the social and work network of a 'golden circle' of judges and barristers.
Next the composition, in England and Wales is that they are elderly, male, white, and educated at elite establishments, under 10% of the judges are women only one women Lady Hale has ever been appointed to the Appellate Committee of the house of Lords. Clearly the judiciary lacked and to an extent it still lacks diversity. Over this point many people argued that judges are not there to represent the interest of any particular group to ensure that the law is applied fairly and equally to all. One response to this argument was that while the background of the judges should not affect their decision-making, the composition of the judiciary as a whole does affect public confidence in their work and so undermines its legitimacy. For this reason, if no other greater diversity was needed.
The Constitutional Reform Act 2005, the government's preference for a recommending body was ultimately successful (i.e the Judicial Appointments committee) and suggests the major ways in which transparency will be maintained is through the traditional constitutional mechanisms of accountability to Parliament. This act makes a number of changes to the office of the Lord Chancellor, but most importantly we need to realize that the Lord Chancellor retains an important set of powers to affect and influence the appointment of judges. Although these powers are offset by those of the appointments committee, it would be wrong to see the new system as bringing to an abrupt end and the influence of the executive on the appointment of judges. Sec 3(1) of the Act thus places a duty on the Lord Chancellor with the responsibility for the administration of justice to uphold the independence of the judiciary. Sec3 (5) prohibits the Lord Chancellor and other ministers from influencing judicial decisions through any special access to the judiciary. Likewise judges must not trespass, on executive and or legislative functions. Given the cult of secrecy in much of central, and our general ignorance of law judges make decision; it is hard to know whether or not the branches of the state keep to their respective fields of competence.
The Act goes on to specify that the appointments must be solely on merits and the commission must be certain that the appointee is of good character. There is also a statutory duty to ensure that appointments are made in such a way as to achieve diversity in the composition of the judiciary. The Lord Chancellor retains an advisory role with respect to the both procedure and selection of the candidates, and the commission is under a duty to take into account the advice that may be given. However, given the importance of this guidance for the operation of the commission, the act does not specify that the Lord Chancellor must consult with Lord Chief Justice and bring the advice to the attention of the common for its approval. We could see this mechanism as the ways in which the system of secret soundings is opened to the democratic process. The appointment powers of the commission are also defined by the act. The Act effectively divides judicial appointments in terms of hierarchy of seniority. As far as appointments to senior positions are concerned, the lord Chancellor must first request the commission to select a person if a vacancy arises in one of these offices. Once the selection is made, a report is submitted by the commission to the Lord Chancellor. The Lord Chancellor may accept or reject the selection and he has the power to require the commission to reconsider its choice of person. The Act requires the Lord Chancellor to put his decision in writing.
The Act resulted in the Prime minister- now only playing a formal role in the new judicial appointments process, passing the names of the candidates from the Lord Chancellor to the Queen, this change was a sensible way of limiting the danger of any future party politicization of the system, it is for this reason only that the role of the Lord Chancellor was reduced after this act, and now he will not be able to act as a judge and government minister. There is no abuse of separation of powers now.
With the help of the act the secretive invitation process will be abolished, unsatisfied candidates can complain to the ombudsman, and the reason for the appointment or disapproval of a candidate is to be given, and because of this it has lead to a much more transparent selection of judges. Also the Act widens access to the judiciary by reducing the requirements as to the rights of the audience. This is likely to increase the number of women in the judiciary and may also widen access to ethnic minorities.
However, with all of the reforms it is still worth noting that the Lord Chancellor still has a part to play in the appointments indirectly; the Secretary of State for Constitutional Affairs, who will likely to be also the Lord Chancellor, will retain ultimate control of the procedure.He has the right to refuse a proposed candidate but must then accept the next proposedl candidate. This again leadsto power being vested in the hands of one person thus questioning the Act.
Still, there has not been a great difference in the composition, the ' merit' system may raise questions, when drafting its definition - as to what exactly is merit? Candidates with desired capababilities qualifying from a middle class university or those qualifying from a highly reputed(upper class) university?the choice to an extent is obvious so in a way the same white and elite group will be selected.
However, keeping these drawbacks in mind the Act still has brought in about a positive change, and to a certain extent does meet the criticisms laid down by the old process of the appointment of judiciary.

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