Martin Partington: Spotlight on the Justice System

As part of the changes to the judiciary introduced by the Constitutional Reform Act 2005, a judicial executive board was created, comprising senior members of the judiciary.

Further information about the board is available at http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/index/judicial-executive-board

In a statement issued by the Lord Chancellor at the end of March 2010, shortly before Parliament rose for the General Election Campaign, the Government indicated that is was engaged in another major set of structural changes to the institutional framework of the English legal system – namely merger of the Courts and Tribunals Services. There was also mention of changing the institutional context within which the Parole Board operates.

The statement conceded that these changes would require a great deal of further work before they could be implemented. The details are unlikely to be available for some time. Underlying the proposals, however, is a clear intention within the Ministry of Justice that it should start to make its contribution to the substantial efficiency savings that all politicians agree must be achieved as part of the overall strategy of getting Britain’s public finances into better shape.

As discussed in the book, proposals for reforming the law made by the Law Commission do not always find their way onto the statute book. Issues seen as important by lawyers are not necessarily seen in the same light by politicians and their official advisers. To address this issue, the Law Commission Act 2009 now requires the Lord Chancellor to report annually to Parliament on the progress of recommendations from the Commission.

The new legislation is now supplemented by a protocol agreed between the Government and the Commission (mentioned in Sir James Munby’s podcast) designed to ensure closer collaboration between government and the Commission.

Under the protocol – laid before Parliament at the end of March 2010 – Government departments will:

• give an undertaking that there is serious intention to take forward law reform in the relevant area of law
• keep the Commission up to date on developments in policy that may impact on its proposals
• provide an interim response as soon as possible or in any event within six months of the Law Commission publishing its proposals and a full response as soon as possible or in any event within a year.

The Law Commission will:

• consult departmental ministers about potential law reform projects in their areas
• support all its final reports with an impact assessment
• take full account of the minister’s views in deciding whether and how to continue with a project at agreed review points.

The Advisory Panel on Judicial Diversity published an important report in February 2010, which made 53 recommendations for improving the selection of those appointed to become judges. The Ministry of Justice Press release summarised the main points:

“The panel made 53 recommendations, finding that:

• the diversity of those entering the profession is significantly greater than that of those who have the experience to apply for judicial office. Therefore, delivering a more diverse judiciary is not just about recruiting talent wherever it may be found, but also about retaining talent and enabling capable individuals to reach the top.
• the Judicial Appointments Commission should revise its criteria for assessing merit, to support and underline with greater clarity its commitment to diversity.
• Selection processes should be open and transparent, promote diversity and recognise potential, not just at the entry points to the judiciary but for progression within it to the most senior levels.
• appraisal, owned and run by the judiciary, should be consistently implemented throughout the judiciary. This was particularly requested by women and black, Asian and minority ethnic judges.
• the Judicial Studies Board should evolve into a Judicial College offering courses in ‘Developing Judicial Skills’.
• the legal profession, including law firms, should actively promote judicial office amongst those who are currently not coming forward, and, together with the judiciary, support and encourage talented candidates from under-represented groups to apply.
• a proactive campaign of mythbusting should be undertaken as many of the perceived barriers to diversity are not reflected in practice.
• there should be no quotas or targets for recruiting under-represented groups. But improvements must be made to the way data is captured and shared, so that there can be systematic evaluation of what works and progress can be monitored against agreed benchmarks.”

The Panel also recommended the creation of a judicial diversity taskforce to oversee progress. The report can be found at http://www.justice.gov.uk/publications/judicial-diversity-report.htm.

The idea of the Judicial Studies Board becoming a Judicial College is not in fact a new one. And in the context of its work with tribunals it has long offered instruction on ‘judgecraft’. Applying this to the rest of the judiciary is very welcome – and recognises that judging is a craft that can be taught – not an innate ability that some have and others do not.