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Who are judges:

How they appointed and back ground, qualification.
Reference relevant reforms, extent modern judiciary.
What is judges before and after any reforms.

The traditional system of appointing judges created a non-diverse and

no representative judiciary and was therefore indefensible. Discuss this
statement and evaluate, with reference to relevant reforms, the extent
to which the modern-day judicial appointments system has addressed
these issues.
Most of the material you can found;
court and tribunals: judicial diversty: statistic 2018, google search
(judiciary. uk) courts and tribunals judiciary

United Kingdom, for its longest history, did not have an independent
Supreme Court till its establishment in 2009 brought about by the
Constitutional Reforms Act, 2005. The highest court in the country before
this was the Appellate Committee of the House of Lords, a body formed
within the upper house of the Parliament. Along with this, there existed the
Judicial Committee of the Privy Council. Both these bodies were headed
by the Lord Chancellor of UK who along with his judicial functions also
carried on his duties as a cabinet minister, speaker in the legislative
chamber in the House of Chambers and as head of the government
department for courts and other legislative bodies.1 All of the latter roles
were of a political nature and thus his exercising roles in both legislature

1
Woodhouse D, 'United Kingdom * The Constitutional Reform Act 2005--Defending Judicial Independence The
English Way' (2007) 5 International Journal of Constitutional Law
and executive suggested a lack of independence of the judiciary from the
legislature. Moreover, the twelve Law Lords presiding over the Appellate
Committee of the House of Lords were full members of the House of Lords
(subject to being judicially qualified), who often did their judicial work
from the House of Lords itself. Such a system had a mix of two different
wings of the government- the legislature and the judiciary which ought to
have been independent in the spirit of the rule of law. Such a system had
its origins in the British democratic system where Parliament was the
supreme body over all institutions of the State. Unlike US, in UK, there is
no separate written body of constitutional law to affirm constitutional
rights like separation of powers. Instead, there are numerous legislations
that make up the Constitution and which can be amended or repealed by
the Parliament. Although, in practice, it was unlikely for the Parliament to
repeal/ amend any law to the effect of undermining the independence of
the judiciary, but in theory, it was possible and therefore the old position
in UK where the House of Lords was the supreme judicial body for the
country was amended by the Constitutional Reforms Act, 2005 that
transferred almost all the powers of the Privy Council and the House of
Lords to the newly created UK Supreme Court. The Act also changed the
manner of appointment of the 12 Law Lords and the Chief Justice to the
UK Supreme Court.
While earlier the judges to the House of Lords were appointed by the
Queen on the advice of the Lord Chancellor. The appointment of judges to
the Court of Appeal rested with the Prime Minister with prior consultation
of the Lord Chancellor. Section 61 of the Constitutional Reforms Act, 2005
laid down a new body for the appointment of the justices of the Supreme
 Court- the Supreme Court Commission.2 This body along the Judicial
Appointment Commission which is responsible for appointment of judges
to 14 offices mentioned in the Constitutional Reforms Act, 2005 were
given complete decision making power on the appointment of judges. The
reversal of their choice could only be exercised by the Lord Chancellor
under very limited circumstances. This system was put in place to ensure a
diverse judiciary where merit be the sole criterion for selection. Along with
this, the justice system was allotted its own staff, budget and building in
order to assert its independence from other wings of the government. 3But
it has been observed that despite the measures to make the appointment of
judges to the judiciary more independent and diverse, the higher judiciary
lacks the much needed independence. The appointment of judges is mostly
restricted to set of barristers who are the upper class male members of the
society. Such selection takes place as the selection commission consists of
judges who are likely to select those of their own kind. Instead of
considering a candidate on the criterion of his usefulness to the society,
they tend to select people in their own image. Such a judiciary is biased
and favored towards a certain class, ideas and set of opinions and does not
represent the minorities of the society. It is thus more likely to not
recognize the rights of women, ethnic minorities and other sub groups of
the society. 4This reflects in the fact that most members of the judiciary
have zero experience in public law where majority of cases concern public
law these days. In 2011, the percentage of women in the judiciary was

2
May T and others, Erskine May's Treatise On The Law, Privileges, Proceedings, And Usage Of
Parliament (LexisNexis 2011)
3
Graves S, R HowardP Corley, 'Judicial Independence: Evidence From A Natural Experiment' (2013) 36 Law &
Policy
4
van der Schyff G, 'Constitutional Review Under The UK Human Rights Act - Aileen Kavanagh, Constitutional
Review Under The UK Human Rights Act (Cambridge, Cambridge University Press2009) 455 P., ISBN 978-0-
521-76100-0' (2010) 6 European Constitutional Law Review]
 22.3% while the percentage of minority ethnic and black Asian judges was
only 5.1 %. To counter such a poorly represented diversity, there have been
suggestions on changing the composition of the appointment commission
for judges. While currently, the recommendation for a candidate is given
by twenty-six membered commission of which twenty members are
judges, a new report suggest that the appointment should rather be made
by a nine membered commission comprising of three senior judges, three
parliamentary members and three lay men. It is essential to draw the
example of Canada here which has been successful in ensuring
accountability and representation of its judiciary by redefining its
definition of merit and by holding open parliamentary proceedings where
judges are questioned about their political philosophy. 5 This is in contrast
to the contrast to the change bought about by UK’s Constitutional Reforms
Act, 2005 where the legislature was completely severed from the decision
making process of judicial appointment. But as the reforms bought about
by the Act have failed to secure representation and have rather induced a
self-propagating oligarchy in the higher judiciary, it is time when we
reconsider the status quo and develop a system that ensures public
accountability of the judges by maximizing representation of all
communities and by securing its ties to the legislature in a way that protects
the system of checks and balances without interfering with judicial
autonomy.6 While parliamentary involvement in the selection of judges is
a sensitive issue that needs much consideration, it is certain that a more
diverse judiciary will increase the faith of the public in the judicial system.

5
Canivet G, M AndenæsD Fairgrieve, Independence, Accountability, And The Judiciary(British Institute of
International and Comparative Law 2006)
6
Melton JT Ginsburg, 'Does De Jure Judicial Independence Really Matter?: A Reevaluation Of Explanations For
Judicial Independence' [2012] SSRN Electronic Journal
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Definition of Duress:

Type of Duress:

Influence of Duress:

Unfluence of Duress:

In pao v Lau and Lord Scarman statement. Are you agreeing with him?

Discuss the validity of above statement.

Cases where duress found and the cases where duress is not found.

How duress in practice.

The Court in the landmark case of Pao On v Lau Yiu Long (1980) 7 remarkably
said that in order to determine duress, there must be present some factor which in
law could be regarded as a coercion of will so as to vitiate consent in order to
constitute duress. In determining this, it is important to inquire whether or not the
person alleged to be coerced protested at the time of the coercion or whether or
not he had an adequate legal remedy available as an alternative against the duress,
whether or not he was advised independently and whether after entering into a
contract entered under duress, the person alleged to be coerced took steps to avoid
the contract. In the case of Pao On v Lau Yiu Long (1980)8, the defendant refused
to enforce a guarantee agreement between the parties claiming that the said
agreement was not legally enforceable as it lacked a valid consideration which is
a prerequisite for a valid contract and also claimed that the said contract was
entered under duress. The Court ruled in favor of the plaintiff and rejected the
claims of the defendant. On the claim of duress, the Court took a view that the
said case was not one of economic duress as the alleged threat to repudiate a
previously existing contract in case the said agreement was not entered into was
not an unfair use of bargaining position by the claimant as it is common in
business transactions for businessmen to negotiate at an arm’s length.9 The Court
also concluded that the agreement was voluntary entered into by the defendant
and that there was no vitiation of his consent even though he was under
commercial pressure to enter into the contract in order to avoid bad publicity of
his company.

The above position taken by the Court was in line with the earlier stand taken by
the Privy Council in the case of Barton v Armstrong (1976)10 where the Court
ruled that the pressure used to enter into a contract must be of a kind that is not

7
Pao On v Lau Yiu Long [1980] AC 614
8
Pao On v Lau Yiu Long [1980] AC 614
9
Phang A, 'Whither Economic Duress? Reflections On Two Recent Cases' (1990) 53 The Modern Law Review
10
Barton v Armstrong [1973] UKPC 27
legitimate in order to establish duress and that such a pressure must be a reason
for entering into the contract even though there maybe other reasons for entering
into the contract. In early cases, the Court regarded a threat as a duress only when
it was made on a person and not on his goods, as held in the case of Skeate v Beal
(1840). 11This position of the Court was swiped by the English Courts from 1976
onwards when the concept of inequality of bargaining power saw the light of the
day, for instance, in Llyods Banks v. Bundi (1975)12 by the remarkable Lord
Denning. Subsequently, the English judges developed the concept of economic
duress which was upheld in the above mentioned cases of Barton v Armstrong
(1976)13 and Pao On v Lau Yiu Long (1980).14 The doctrine of economic duress
was mostly applied in the cases where the act to force a party to enter into a
contract was wrongful in itself but nevertheless the English Courts did stretch the
doctrine while applying it in cases like Burmah Oil Limited v Bank of England
(1980)15 but the question of whether a mere threat of breach of contract would
establish duress or not has not been answered by the Courts. Although, the liberal
times have approved of a wider interpretation of the term “economic duress”, the
concept suffers from some inconsistencies of commercial law which have been
highlighted now and again by professors and judges.16 They argue that the
concept of economic duress is internally inconsistent because the victim of
economic duress does choose to submit to duress. The Court does not determine
duress on the conclusion of absence of choice. Rather, a case of economic duress
is established when the Court concludes that the alternatives available to the

11
Skeate v Beale [1840] 11 Ad & El 983
12
Lloyds Bank Ltd v Bundy [1975] QB 326
13
Barton v Armstrong [1973] UKPC 27
14
Pao On v Lau Yiu Long [1980] AC 614
15
U.K., Burmah Oil Co. Ltd. v. Bank of England, [1980] AC 1090

16
Ceil C, 'Contractual Free Will: Doctrines Of Economic Duress & Undue Influence' [2015] SSRN Electronic
Journal
victim were inadequate. Another argument in support of this inconsistency is that
a contract under duress is not void in itself but is voidable by the victim. Such an
inconsistency has been observed by the Court in Universe Tankships (1982).17
They further argue that although in most cases the act amounting to duress will
be unlawful in itself, there maybe cases where such an act is not unlawful in itself.
In such cases, the illegitimacy of the pressure used to induce a person to enter
into contract shall only be established on the basis of the nature of the demand
made (whether it is a bargain, negotiation or threat etc.), the same being stated by
the Court in Thorne v MTA (1937).18 In such cases, the uncertainty of bargain
made during a commercial negotiation may fall heavy on one party if the Court
decides to rule against the said party.19 The reliance on the sole factor of the nature
of the demand also makes economic duress open to interpretation as a tort as it
meets all factors that are necessary to establish a tort action. Such an interpretation
may make the said party prone to several actions for an action the validity of
which maybe ambiguous to them at the least, if not questionable. The position of
law with respect to the doctrine of economic duress is often criticized as being a
countervailing factor to free market stability and thus seen against economics
which should be the supreme law for the judiciary. Although, the doctrine of
economic duress recognizes the concept of inequality of bargaining power and
thus performs a very important social function by bringing about social justice
and labor reforms. Another interesting position was taken by the Court in the case
of Universe Tankships (1982)20 that in cases of industrial relations, a case of
economic duress cannot be made when such duress arises in the course of a trade
dispute between the parties, even when it meets all other elements of the
economic duress.

17
Universe Tankships Inc of Monrovia v International Transport Workers’ Federation [1982] 2 All ER 67
18
Thorne v Motor Trade Association [1937] AC 797 House of Lords
19
Campanella MS Eijffinger, EU Economic Governance And Globalization (Edward Elgar 2003)
20
Universe Tankships Inc of Monrovia v International Transport Workers’ Federation [1982] 2 All ER 67