Report No. 121
5.12. Judges are designated by the Crown with little direct surrender to politics. Practically speaking, they are the choices of Lord Chancellor, the senior law member of the Government, who is the Queen's Chief Adviser on the selection. Because the Lord Chancellor is chosen by the Prime Minister, the latter does have an indirect voice in the selection of judges, especially on the middle and higher level. The Prime Minister, in effect, designates the appointees but acts or the advice of the Lord Chancellor. Formally it is the Queen who actually issues the Commission of appointment.
5.13. The Lord Chancellor himself is, however, politically designated head of the judicial hierarchy of the United Kingdom. In addition, he advises on all appointments to judicial office from the rank of justice of peace to the higher offices of the English judiciary. He presides over the House of Lords. He is a member of the Cabinet. He is the head of the judiciary. This is a rare combination. The Lord Chancellor combines in his person the three-fold functions of executive, legislature and judiciary which has been often described as a complete refutation of the principle of separation of powers.1
1. H.J. Abraham The Judicial Process, p. 33, (5th Edn., 1986).
5.14. Lord Chancellor has to make a selection of about 500 full-time judges of England and Wales from a comparatively small and select group. Being a member of the Bar in the past, he may know some of those living elites with their political inclinations but it is said that even when members of the other political hue and colour show promise to be competent judges, he will certainly not hesitate to cross party lines to make appointments.
Lack of his personal contact also does not come in his way because he will be able to consult senior judges who must have an uncanny view of the leading members of the bar appearing before them but neither their concurrence nor their prior approval is a sine qua non. It is said that any canvassing for office or political pressure on the Lord Chancellor are scouted strongly. After a review of all the appointments over a period of half a century and more, a conclusion was reached that political considerations have hardly entered the process of judicial selection since 1907.1
The appointment of Lord Chancellor, Lords of Appeal in Ordinary, Lord Chief Justice, Master of the Rolls, President of the Probate, Divorce and Admiralty Division, and Lord Justices of the Court Appeal are made by the Queen on the advice and recommendation of the Prime Minister while those of the Judges of the High Court, county Court Judges, Chairman of the Quarter Sessions, Records of Borough and Metropolitan Stipendiary Magistrates are made on the recommendation of the Lord Chancellor. He also nominates Justices of the Peace. It can be safely concluded here that the power to appoint judges at all levels in England vests entirely in the executive.2
1. R. Jackson Study on the Machinery of Justice in England, as quoted in S.P. Gupta v. Union of India, 1981 Suppl SCC 87 (593).
2. H.R. Dubey The Judicial System of India and Some Foreign Countries, 420.
5.15. Lord Jowitt, while discussing judicial appointments in United Kingdom observed, "How should I have felt if I made a lot of unworthy appointments, when I noked the cold looks that I should have received when next I went to lunch at the Inn."1 Although the Bar and Bench do not share the responsibility of selecting the judges, which lies ultimately with the Lord Chancellor in practice, they play an important role in the process of selection and should also be credited (or held responsible, as the case may be) for the quality of appointments2 (professional accountability).
1. Shimon Shetrect Judges on Trial: A Study of The Appointment and Accountability of The English Judiciary, 52 (1976).
5.16. However, a fresh thinking is taking place on this time honoured model. In 1972, the Justice Sub. Committee on the judiciary recommended that while retaining the control of Lord Chancellor in the matter of appointments, he should be assisted in his task by a small advisory appointments committee.1
1. Ibid., p. 30.