What Are the Problems with the Present System of Judicial Appointment?

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New arrangements for appointing senior judges are needed to ensure a more diverse judiciary, according to a report published on Monday. It calls for the concept of "merit" to be redefined and raises concerns that one branch of government risks becoming a self-perpetuating oligarchy.

The report's authors are Chris Paterson from the liberal think-tank CentreForum and Professor Alan Paterson from the centre for professional legal studies at Strathclyde university.

The two authors regard the current system of appointing senior judges in the United Kingdom as "manifestly untenable" and "not fit for purpose". Their report is published two days ahead of major recommendations from the House of Lords constitution committee on reforming the system of judicial appointments.

Monday's report takes issue with the commonly-accepted definition of merit, the sole criterion for judicial appointment. Lawyers have understood this to mean that appointments should go to the cleverest candidate, effectively the best or most brilliant lawyer available.

The authors argue that this encourages selectors to choose people in their own image: generally, white males with similar educational backgrounds. Instead, they say, each post should go to the candidate who would be of greatest benefit to the judiciary.

Their paper casts doubt on the so-called tie-breaker provision in the Equality Act which allows a candidate from an under-represented minority to be selected when that candidate and another are of equal merit. Since the new appointments system was introduced more than five years ago, selectors have never found two candidates of equal merit.

And the authors point out that the system is interpreted so rigidly that it prevents candidates for appointment to the supreme court from being selected from those with experience of the main work that the court now does: around half its time is now spent on cases involving public law. This can be compared to a football manager who...
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