When judges are sworn in to judicial office in Canada and England and Wales, they recite a common oath of office. A judge promises "to do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will." Alluded to in this shared oath is the principle of judicial independence, the notion that judges should be free to make decisions fairly and impartially in accordance with the law, without interference from the State.
Historically, members of the senior judiciary in both countries were simply selected by the executive and appointed by the monarch. The process raised legitimate questions about political involvement in the selection process and its potential impact on judicial independence (or at the very least, the perception of independence). Reforms to address these concerns have been enacted in both countries along similar lines, although there remain some important differences.
Scrutiny of the judicial selection process should continue to be of general public concern. The rigour of the selection process and the calibre of the individuals selected under that process is a reflection of the quality of justice and the role the judiciary plays in each country's constitutional framework.
Appointment of judges in England and Wales
When the judicial selection process in England and Wales was changed in 2005, it was intended to address the opacity and secrecy which characterized a system whereby judges were chosen by receiving the proverbial "tap on the shoulder" by the Lord Chancellor (the member of Cabinet responsible for the Ministry of Justice). The changes brought about by the Constitutional Reform Act 2005 (CRA) were sweeping. The Act established the Judicial Appointments Commission (JAC), an independent body which would select candidates for senior judicial office. The JAC is composed of fifteen Commissioners (the Chairman, six judicial members, two professional members, one non-legally qualified judicial member, and five lay members). Under s. 63(2) of the Act, selection must be solely on "merit", the meaning of which is not expounded in the legislation but has been interpreted by the JAC as including qualities such as intellectual capacity, communication skills, and leadership.
Although the JAC chooses a candidate for appointment, the Lord Chancellor retains the ability to accept, reject, or ask the JAC to reconsider the nomination for senior judicial positions. Once a name has been...