Beyond Merit: The New Challenge for Judicial Appointments

Research output: Chapter in Book/Report/Conference proceedingChapter (peer-reviewed)peer-review

Abstract

The combination of ‘merit’ with ‘diversity’ in judicial appointments has until recently been seen as the best way towards resolving the tension between having the sort of ‘representative’ (or at least ‘reflective’) judiciary that is required in a modern legal system, and ensuring that judges remain of sufficient ‘quality’ to discharge their role effectively. The new appointment systems that grew up across the United Kingdom have been anxious to avoid the more obvious forms of social engineering such as quotas, or schemes of positive discrimination. The result is that ‘appointment on merit’ has been the supreme governing principle and the pole around which all processes have circulated. Indeed this reflects international best practice and a whole series of international declarations. Every jurisdiction within the United Kingdom has enshrined this in legislation. Originally there may have been a number of unresolved tensions for some within the whole project of seeking a judiciary that looks more like the majority of people over whom judgment is to be made. However the idea of ‘merit’ did seem to allay these fears and suggest that the tensions between diversity and effectiveness could be resolved. The idea of merit is, however, becoming seen increasingly as problematic. It may even be acting against diversity. Significant figures within the system have expressed dissatisfaction with the idea itself and how it is working. Legislation allowing a candidate from an under-represented minority to be selected when that candidate and another are of equal merit, has attracted suspicion as to its effectiveness. Research is increasingly focusing on the social and cultural conditioning which informs the construction of the idea of merit and suggesting that the idea is narrower than might be hoped. Meanwhile the operationalization of the concept continues to be carried out mainly by those within the system – judges and practitioners – who see themselves as particularly qualified to adjudicate on merit. Of course these are the very people whose background and experience is such that they may hold fast to a culturally created vision of merit that can act contrary to the quest for diversity. The problem for many of the appointment bodies across the United Kingdom is that ‘people like us will appoint people like us’. Even ensuring that ‘outsiders’ are given a place on the bodies appointing judges may not be enough. They may introduce an element of ‘independence’ – but only of course if their views are heard and they do not become captured by an interpretation of ‘merit’ that comes from the wider legal profession or, as happened in Scotland, become excluded from crucial aspects of the decision. All of this means that ‘merit’ as presently constituted can no longer be relied upon to deliver its side of the bargain in the search for a diverse judiciary. This chapter seeks to unpick this problem, and consider how we might move on.
Original languageEnglish
Title of host publicationDebating Judicial Appointments in an Age of Diversity
EditorsGraham Gee, Erica Rackley
Place of PublicationAbingdon, Oxford
PublisherRoutledge
Pages223-239
Number of pages16
ISBN (Print)10-1138225355
Publication statusPublished - 13 Sep 2017

Keywords

  • judiical appointments, legal system, jsutice system, gender and law

ASJC Scopus subject areas

  • Law

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