The most senior judge and head of the judiciary is the Lord Chief Justice, currently Lord Phillips. Like the Master of the Rolls, the Lord Chief Justice has nearly always served in the House of Lords or the Court of Appeal before appointment to this post.
In the House of Lords sit twelve Lords of Appeal in Ordinary (Law Lords), including by convention two from Scotland and one from Northern Ireland. Most were previously members of the Court of Appeal, the Court of Appeal of Northern Ireland or the Scottish Court of Session before their elevation to the Lords, though Lord Slynn (appointed in 1992) had previously been the UK judge on the European Court of Justice. The Lord Chief Justice (who is usually made a life peer on appointment) and other peers who hold or have held high judicial office are entitled to sit as members of the Appellate Committee and sometimes do. Lord Cooke, for example, formerly Chief Justice of New Zealand and a life peer in his own right, sat as a judge from time to time until he reached the age of 75. Lady Hale became the first female Law Lord in January 2004.
Cases in the House of Lords are normally heard by panels of five members, selected by the senior Law Lord. There have been suggestions that a "full court" of all available members should sit on cases of particular importance, to avoid any suspicion that a decision (particularly one reached on a 3-2 majority) might have been different had the selection been different: their Lordships' other dutis make this difficult, but some recent cases raising important constitutional issues have been heard by panels of seven (e.g. A v Home Secretary [2005] UKHL 71) or nine (e.g. Jackson v Attorney-General [2005] UKHL 56).
The Law Lords are currently full members of the House of Lords and can take part in its legislative and other debates, though in practice they rarely speak or vote except on legal matters. When the new Supreme Court comes into effect in or about October 2009 the current Law Lords will become Justices of the Supreme Court and will no longer sit as peers in Parliament.
The Court of Appeal has some forty permanent members including the Lord Chief Justice, the Master of the Rolls, the President of the Queen's Bench Division, the President of the Family Division and the Chancellor of the High Court (not to be confused with the Lord Chancellor or the Chancellor of the Exchequer). Its other members are styled Lords Justices of Appeal (though they are not in fact Lords), and have always served as High Court judges before their appointment. They sit usually in panels of two or three in the Civil Division, or with High Court judges in the Criminal Division, hearing appeals from the courts below; some have additional duties (e.g. Keene LJ as Chairman of the Judicial Studies Board).
There are about a hundred High Court judges, about fifteen each in the Chancery and Family Divisions and the rest in the Queen's Bench Division. Some are given specific roles such as Chairman of the Law Commission (Etherton J) or President of the Employment Appeal Tribunal (Elias J); some are even seconded to other full-time posts (e.g. Bratza J, who currently sits in the European Court of Human Rights). High Court Judges hear difficult or high-value civil cases at first instance (about 57 per cent of their time), but also sit with Lords Justices of Appeal in the Court of Appeal and the Divisional Court (16 per cent), and sit on the most serious cases in the Crown Court (27 per cent).
The selection and appointment process for High Court judges is discussed below. Nearly all were previously practising barristers, though Collins J was a solicitor and Beatson J (although qualified as a barrister) was primarily an academic lawyer and before his appointment to the bench had been Professor of Law at Cambridge University. Most High Court judges have also had some part-time judicial experience as Deputy High Court Judges or as Recorders.
There are some six hundred Circuit Judges, who have had at least ten years' experience as barristers (85 per cent) or solicitors (15 per cent), and have usually sat part-time as Recorders or (occasionally) full-time as District judges. They spend about 61 per cent of their time in the Crown Court and 34 per cent in the County Court, but some sit occasionally as Deputy High Court Judges in the High Court or in the Criminal Division of the Court of Appeal. Appointment as a Circuit Judge is usually a final career move: although Circuit Judges are theoretically eligible for appointment to the High Court bench, only about 15 per cent of current High Court judges have come by this route.
Twelve hundred Recorders try less serious cases in the Crown Court (77 per cent of their judicial time) or the County Court (22 per cent). These are professional but part-time judges, sitting for between four and ten weeks a year and continuing in practice as barristers (85 per cent) or solicitors (15 per cent) for the rest of the time. Recorders have at least ten years' experience as a lawyer, and are appointed initially for five years, but this appointment can be renewed as often as necessary subject to satisfactory performance. A Recordership is usually seen as a probationary period before a person is made a full-time judge, but some Recorders are happy to remain in that role indefinitely. [But note a linguistic anomaly: the Recorder of Bristol, currently His Honour Judge Crowther QC, is actually the senior Circuit Judge at the Bristol Crown Court.]
Five hundred District judges and eight hundred Deputy District judges in the High Court and County Court combine judicial with administrative duties, hearing and determining low-value civil claims allocated to the Small Claims track but also dealing with interlocutory applications while a fast-track or multi-track case is in preparation. A further three hundred designated District Judges and Deputies sit in Magistrates' courts, exercising the powers of a magistrates' court but sitting alone rather than as a panel. District Judges are full-time professional judges, while Deputy DJs are part-time: most are former solicitors with at least seven years' experience, but there are some barristers among them.
Mention should also be made of the two hundred or so men and women who sit full-time as paid Chairmen of Tribunals, as well as some thousand part-timers. They are normally qualified solicitors or barristers, and (if part-time) continue with their practices when not sitting judicially.
At the beginning of January 2008, the senior judges of England and Wales were as follows:
Lord Chief Justice: Lord Phillips (69)
Master of the Rolls: Sir Antony Clarke (64)
Lords of Appeal: Lord Bingham (74, Senior Law Lord), Lord Hoffmann (73), Lord Hope (69, Scotland), Lord Saville (71), Lord Scott (73), Lord Rodger (63, Scottish), Lord Walker (69), Lady Hale (62), Lord Carswell (73, Northern Ireland), Lord Brown (70), Lord Mance (64) and Lord Neuberger (59).
President of the Queen's Bench Division: Sir Igor Judge (66)
President of the Family Division: Sir Mark Potter (70)
Chancellor of the High Court: Sir Andrew Morritt (69)
Selection and appointment
Since April 2006, the selection of judges is the responsibility of the Judicial Appointments Commission, which consists of six lay members, five judges, two lawyers, a tribunal member and a lay magistrate, all appointed by the Lord Chancellor. (Lords of Appeal in Ordinary are selected by a special ad hoc selection commission with members from Scotland and Northern Ireland as well as from the English JAC.) When a vacancy arises, the Commission carries out a selection procedure as described below and puts forward one name for each vacancy. This procedure replaces the old system in which some judges were "invited" to accept a particular appointment without having gone through any formal selection process.
The most senior judges (The Lord Chief Justice, the Master of the Rolls, the Law Lords, the Heads of Departments and the Lords Justices of Appeal) are formally appointed by the Queen on the recommendation of the Prime Minister. The Prime Minister can reject the first name put forward by the Judicial Appointments Commission and ask for another, but he cannot recommend anyone not nominated by the Commission (except in respect of the Law Lords) and cannot reject more than one.
Most other judges (High Court judges, Circuit judges, Recorders and District judges) are appointed by the Queen on the recommendation of the Lord Chancellor, while Deputy District judges are appointed by the Lord Chancellor directly. Once again, the Lord Chancellor may reject the first person nominated by the Commission and ask for a second nomination, but must then accept one of these two.
Once a vacancy has been identified, the selection procedure begins with an advertisement placed in national newspapers and legal journals. Prospective applicants can obtain further details and application forms, which they complete with their personal and career details, explaining how they meet the selection criteria. Applicants are asked to name between three and six referees - judges or lawyers who are familiar with their professional work - but the Commission may also consult other judges and senior lawyers who know the applicant. The selection panel then draws up a short list and interviews those applicants who appear to be most suitable. The interview (which typically lasts about 45 minutes) is based mainly on the selection criteria above, and may include a short practical test based on a case study sent to applicants in advance or given to them at the time.
The selection criteria include certain statutory requirements. A High Court judge must have had High Court rights of audience for at least ten years, or at least two years' experience as a Circuit judge; in practice, s/he should also have had experience as a Deputy High Court judge or Recorder. A Circuit judge or Recorder must have had Crown Court and/or County Court rights of audience for at least ten years, and a Circuit judge should normally have had experience as a Recorder or District judge. A District judge must have been a barrister or solicitor for at least seven years, and should normally have served as a Deputy District judge for at least two. Other non-statutory criteria include legal knowledge and experience, intellectual and analytical ability, sound judgment, decisiveness, communication and listening skills, authority and case management skills, integrity and independence, fairness and impartiality, understanding of people and society, maturity and sound temperament, courtesy, commitment, conscientiousness and diligence.
The aim of the selection process is to appoint the best qualified candidates regardless of their gender, ethnic origin, marital status, sexual orientation, political affiliation, religion or disability. How far it is successful is a matter of some disagreement: judges are sometimes described as "old white men", and the statistics seem to bear this out. We would not want judges to be completely representative, of course, with the same proportions of children, criminals and lunatics as society in general, but in some other respects the imbalance may give cause for concern.
The system whereby judges are selected from experienced barristers and solicitors (who do not generally complete their training until they are about 25) means they are well into middle-age even when first appointed, and usually over 50 by the time they reach the High Court bench. The reduction of the judicial retirement age from 75 to 70 has done something to help, but in 2007 the youngest High Court judge was 49 and all but one of the the Lords of Appeal in Ordinary were over 60.
Very few members of ethnic minority groups have reached the bench - the first black High Court judge was Dobbs J (formerly Linda Dobbs QC), appointed in September 2004. In 2007 there were just six Asian and three black Circuit judges out of more than six hundred, and even among Recorders (usually the first step to the higher judiciary) fewer than five per cent came from minority ethnic groups. Women too are significantly under-represented among the judiciary, with just one female Law Lord, three Lady Justices of Appeal and ten female High Court Judges - these figures reflect the lower proportion of women entering the legal profession thirty years ago. But the situation is slowly improving: 40 per cent of new judges in 2005-06 were women, and 14 per cent came from minority ethnic groups.
Some three-quarters of senior judges still come from the upper or upper-middle class, however, and a similar proportion were educated at independent schools and/or at Oxbridge. The senior judges, says Professor Griffiths, "have by their education and training and the pursuit of their profession as barristers, acquired a strikingly homogenous collection of attitudes, beliefs and principles, which to them represents the public interest". On the other hand, an education at Mill Hill and Cambridge has not prevented the white, male, 67-year-old Lord Justice Sedley from handing down a significant number of very "progressive" judgments, and the same can be said of many of his brethren.
The judiciary would certainly be more representative if it included more women, more members of minority ethnic groups, more working class people, and (particularly) more young people, and this could quite easily be achieved if the selection criteria were changed. The main counter-argument to any such change - and it is put forward by many people who are by no means reactionaries - is that we want as judges the people best able to do the job, regardless of their background. At the moment, because of social history, most of the best people are rather elderly white males from upper middle-class backgrounds: that may be accidental, but it may be significant when judges have to decide cases involving controversial political or social issues.