Judicial Appointments - Constitution Committee Contents

Chapter 7: Post-appointment issues

173.  During the course of our inquiry we examined a number of issues which, although more directly concerned with what happens following an individual's appointment to the judiciary, have an impact on the process of appointments: the possibility (or lack) of deployment and promotion has an effect on determining who is eligible, or may wish to be appointed, to particular roles; a formal appraisal system could form part of the appointments process itself; whilst the age at which judges must retire determines both whether it is feasible to appoint those who have taken longer than others to reach the most senior levels of the judiciary and the frequency by which new posts become available. One good reason for making changes in respect of all these issues is to assist with the promotion of diversity, but we consider that the recommendations which we make in this Chapter would be beneficial for the whole judiciary.

Judicial careers

174.  Appointment to the judiciary in the United Kingdom is based on a number of years of prior non-judicial legal experience.[291] Candidates for appointment to the High Court are often experienced QCs who have established themselves in practice for over twenty years. Most Court of Appeal and Supreme Court judges are promoted from the High Court.[292] Appointments to become a circuit judge, recorder, district judge or tribunal judge are often made following ten to 15 years in practice. Our witnesses were concerned that there is limited movement between the different parts of the judiciary, and little prospect of promotion from the lower to the more senior branches. Once appointed to the judiciary, there is generally no established career path for individual judges to follow.

175.  Greater opportunities for career development within the judiciary may be distinguished from the more formal concept of a career judiciary, as found in most continental civil law systems. Such systems are characterised by the appointment of graduates to junior positions, generally following tailored education at a judicial training institute, and often without having engaged in legal practice prior to appointment. These junior judges may then be promoted, on the basis of performance, to progressively more senior positions in the judicial hierarchy. This career structure is similar in a number of respects to the progression of career civil servants in the UK. Legal systems with career judiciaries of this nature are also characterised by the attachment of judicial security of tenure to the judicial career itself, rather than to any particular judicial post. This allows for greater flexibility in the transfer of judges between courts at similar levels of seniority.[293]

176.  Our witnesses did not support the idea of having a career judiciary in the United Kingdom, stressing that judges benefit from having had a number of years in practice as well as from the added maturity which is consequent upon appointment to the judiciary at a later stage.[294] Our witnesses were, however, in favour of judicial careers with greater opportunities for promotion through the ranks and deployment between posts at the same level.[295]

177.  Lord Carswell argued that under the present system, "Most people appointed to the different tiers of the judiciary come in at a level appropriate to their ability and can properly remain in that tier."[296] Similarly, the Bar Council was of the view that someone with a particular specialism would not wish to "occasionally sit in a lower tribunal which is intellectually inferior to what they do in practice and has no relevance to what they do in practice."[297] Both these witnesses, however, agreed with a number of others who pointed out that some lawyers would prefer to enter the judiciary at a lower level with the prospect of promotion.[298] This would be particularly attractive to those with caring responsibilities. As the UK Association of Women Judges stated:

"Many very able women downsize their professional careers when they undertake family responsibilities but they retain the ability and potential to become excellent judges. Many would find appointment at district or tribunal level attractive if there were a realistic prospect of promotion in later years."[299]

178.  Witnesses also drew our attention to the much greater diversity of the tribunals judiciary,[300] to the difficulties facing tribunals judges whose experience is not fully taken into account when applying to appointment to the courts judiciary[301] and to the need for greater use of deployment from the tribunals judiciary to the courts judiciary.[302] Lord Justice Carnwath set out the specific barriers to deployment between the courts and the tribunals judiciary which exist under current legislation:[303]

"Salaried court judges can sit in tribunals by agreement. However, fee-paid courts judges cannot sit in tribunals, and neither salaried nor fee-paid judges in tribunals can sit in the courts. These restrictions are inefficient and serve as a block on judicial flexibility and career development."[304]

179.  The Advisory Panel on Judicial Diversity recommended that "There should be a fundamental shift of approach from a focus on individual judicial appointments to the concept of a judicial career. A judicial career should be able to span roles in the courts and tribunals as one unified judiciary."[305] We note that the Taskforce Progress Report of May 2011 stated that: "Work is being undertaken jointly to see whether a common framework of competences, suitable for the selection, training and appraisal can be developed, which will assist in career development."[306]

180.  There should be a greater emphasis within the judiciary on judicial careers, making it easier to move between different courts and tribunals and to seek promotions. Internal barriers to career progression and movement should, as a minimum, be removed. There also needs to be a cultural change so that all those involved in appointments and deployment are willing to recognise and promote talented judges and enable them to progress to the senior levels of the judiciary.


181.  Appraisals are an expected part of working life within business, the Civil Service and the professions; the judiciary is an exception. Aside from some limited appraisal schemes which exist for fee-paid judges up to the level of district judge and in tribunals, there is no systematic use of appraisals within the judiciary. The evidence we received was wholly in favour of greater use of appraisals,[307] though there were some contrasting views as to whether appraisals should apply to the senior judiciary[308] and the use which should be made of such appraisals.[309]

182.  Witnesses pointed to a number of benefits of appraisals systems. First, public confidence in the system of appointments will be strengthened if judges, once appointed, are evaluated: this will ensure that "what they are doing is the right kind of thing and that they are doing it well."[310] Secondly, appraisals improve the quality of the judiciary by assessing any weaknesses in performance and enabling judges to develop.[311] Thirdly, appraisals are a way of improving confidence by emphasising an individual's particular strengths: this can lead to some individuals seeking promotion who may not otherwise have done.[312] For this latter reason in particular, Baroness Neuberger informed us that the evidence received by the Advisory Panel on Judicial Diversity "from all the women and all the people from ethnically diverse groups ... was clear: they wanted appraisal."[313]

183.  Our witnesses agreed that an appraisal system should be judge-led: appraisal by an outside body could interfere with the independence of the judiciary.[314] Under those formal schemes which do currently exist, judges are generally shadowed for a day with the appraiser sitting down with the appraisee at the end of the day to go through the appraisal criteria. A written report would then be kept on file.[315] Such schemes are significantly different from the process (necessary as it is) whereby a head of division may speak to a judge whose judgments are regularly being overturned on appeal or who has a record of poor case management.[316] Appraisals are about identifying strengths as well as weaknesses.

184.  Our attention was drawn to pilot projects for recorders which took place a few years ago but which foundered on grounds of cost.[317] A lack of resources was the main reason cited by many witnesses for there not being any universal system of appraisal.[318] Appraisers need to be trained and must take time away from their judicial work to conduct the appraisals. This can be expensive, but the cost should be set against the cost of having poorly performing judges given no opportunity to improve[319] and talented individuals given no encouragement to seek promotion. Improving the, already high, quality of the judiciary is a cost-effective exercise.

185.  If a formal system of appraisals were to be adopted across the judiciary, a further question is the use which might be made of the appraisals in terms of appointment to other judicial posts. Our witnesses were divided on this issue. Lady Justice Hallett, a former JAC commissioner, pointed out that her "fellow commissioners were always saying, 'Why don't we have the best evidence?'" when making appointments.[320] Cordella Bart-Stuart, an immigration tribunal judge with experience of being appraised, told us that since appraisals are not used in the appointments process "you then wonder 'What was the point of that?' because no one is seeing it apart from your head of division."[321] Other witnesses, however, were concerned that placing appraisal reports before an appointments panel would damage the appraisals process itself by making both parties less frank: on this view, appraisals systems are designed to improve job performance, not to assess suitability for promotion.[322] An alternative suggestion made was that appraisal records be made available to those providing references as a source of relevant information.[323]

186.  A formal appraisal system should be introduced: the judiciary should not be exempt from a practice which is used in most other sectors and which has such clear benefits for those being appraised. Furthermore, without an effective appraisals system, the public cannot be assured that the judiciary is of the highest possible quality. Whilst we recognise the resource constraints, the cost of an appraisals system pales into insignificance compared with the cost of having poor judges.

187.  As no appraisals system is currently in place, it is difficult to assess whether the use of appraisals records in the appointments process would have a detrimental effect on the appraisal system itself and whether this would outweigh the evidential value of making records available. As a first step, records should be made available to judicial referees. Once appraisals are more firmly established and accepted, the possibility of placing records before appointment panels should be reviewed.

Retirement age

188.  The judicial retirement age has a direct impact on appointments as it affects the frequency by which posts become available and the age at which individuals may be appointed to new posts.

189.  Compulsory retirement for judges of the High Court and above was first introduced by the Judicial Pensions Act 1959, which set a retirement age of 75. Prior to this, judges were not compelled to retire at all, and could continue in office for as long as they wished.[324] Other judicial office-holders were subject to a variety of different retirement provisions. Some were subject to a retirement age of 70, others below or above that age. Some office holders had to retire upon the attainment of a particular age; others continued until the completion of the year of service following a particular birthday. For some appointments, particularly in tribunals, there was no statutory retirement age at all.[325]

190.  A general judicial retirement age of 70 was introduced by the Judicial Pensions and Retirement Act 1993.[326] The rationale behind the change was to introduce consistency to the judicial retirement system.[327] The age of 70 was settled on by the Government of the day following consultations between the Lord Chancellor and senior members of the judiciary.[328] However, this new retirement age only applied to judges first appointed to office after the commencement of the relevant provisions (31 March 1995). As such, any judge first appointed to judicial office prior to 31 March 1995 is not required to retire until reaching 75. A number of serving judges remain subject to this higher retirement age (including ten of the current Justices of the Supreme Court[329]). It should be noted that legislation permits certain retired judges to sit judicially on an ad hoc basis after retirement. However, retired judges may not sit ad hoc after reaching the age of 75.[330]

191.  A set retirement age is undoubtedly a blunt tool by which to assess whether someone is no longer fully capable of performing their job. In the light of new laws preventing age discrimination in other sectors,[331] there is a case to be made for having no set retirement age at all.[332] However, the principle of judicial independence necessarily makes it very difficult to force a judge to retire on the grounds of declining capacity to act: who should assess when the time is right for a judge to step down from his or her post? The weight of the evidence we received was in favour of a retirement age of around 70 or 75.[333] We do not consider that a strong case has been made for any significantly different retirement age to be introduced; but the evidence caused us to examine whether it was appropriate for all judges to retire at 70, or whether some or all judges should be subject to an increased retirement age of 75.

192.  Much of the problem of determining the most appropriate age for retirement is a result of the current requirement for a uniform retirement age. Despite the clear need to introduce some consistency across the judiciary which was recognised in 1993, we believe that different considerations apply to the senior appellate courts than to the lower level courts and tribunals.

193.  At the lower levels of the judiciary, judges who do not retire until the age of 75 could be said to be blocking career paths for their younger colleagues.[334] If individuals are appointed as, for example, district or circuit judges and stay in their posts for 20 to 30 years, there are fewer opportunities for talented younger, and probably more diverse, lawyers to take their places. This difficulty does not arise to the same extent in cases where individuals are promoted to senior judicial positions (so opening up the entry-level positions which they previously held). This especially applies to appointments to the appellate courts where positions will not be held for such a long time. So, appellate judges are less likely to block career paths than their first instance colleagues.

194.  Public perception also distinguishes between appellate and first instance judges: the risk of older judges being viewed as out of touch applies to a greater degree to those having to determine the facts of a case. Appellate judges sit in panels and "have time to check, consult and cogitate" whereas trial judges need a greater degree of "quick and accurate recall".[335]

195.  An increased retirement age was viewed by some witnesses as particularly beneficial to those who started on the career ladder later in life, perhaps after taking a career break to have children.[336] This argument again applies more to the senior judiciary: it is simply not possible for some individuals to reach the highest levels of the judiciary, however talented or experienced they might be, because their career paths have taken too long. An increased retirement age would provide someone appointed to the High Court in their mid to late 50s with sufficient time to gain the experience necessary to reach, potentially, the Supreme Court.

196.  We also consider that there is less value to be gained from appointing someone to the Court of Appeal or Supreme Court who only has a couple of years left to serve. We note that Lord Collins was required to retire from the Supreme Court in May 2011 having served as a member of the final court of appeal for only slightly over two years. [337] The loss of such talent is a strong argument in favour of an increased retirement age for the senior judiciary. It is in the public interest that senior judges of proven judicial quality are retained in the appellate courts where experience and knowledge is at a premium in the development of the law.

197.  We do not agree that there should be a uniform retirement age across the whole of the judiciary. There should be differential retirement ages: of 75 for Court of Appeal judges and Supreme Court Justices and 70 for all other judges. This will ensure the retention to age 75 of judges at the highest level, where proven judicial quality and experience are at a premium in the development of the law. This will also ensure that posts become available at the lower levels whilst leaving time for talented individuals who have not followed a traditional career path to reach the highest levels. Differential retirement ages will thus help to promote diversity and to maintain public confidence in the judiciary as being of the highest quality.

291   Usually as a lawyer, though those with mainly academic experience may also be appointed.  Back

292   The recent appointment of Jonathan Sumption direct from the Bar was an exception.  Back

293   N Garoupa and T Ginsburg, Hybrid Judicial Career Structures: Reputation vs Legal Tradition, Journal of Legal Analysis 2011. Back

294   Q 116 (Lord Justice Goldring), Q 210, (Law Society), Q 235 (Baroness Hale), Q 235 (Baroness Neuberger), Q 253 (Lady Justice Hallett), Q 259 (Association of Women Barristers).  Back

295   Q 37 (Professor Alan Paterson), Q 116 (Lord Justice Goldring), Q 158 (Lord Falconer), Q 209 (JUSTICE), Q 210 (Law Society), QQ 216 and 218 (Baroness Hale), Q 254 (Lord Neuberger MR), Q 261 (Cordella Bart-Stuart), Q 323 (Baroness Prashar), Q 401 (Lord McNally), written evidence by Sir Thomas Legg, para 26, by Lord Justice Carnwath, para 9, by UK Association of Women Judges, para 4, by Association of Women Solicitors; see also Report of the Advisory Panel on Judicial Diversity op. cit. recommendations 1 and 44.  Back

296   Written evidence.  Back

297   Q 210.  Back

298   Ibid.  Back

299   Written evidence, para 4.  Back

300   Written evidence by Lord Justice Carnwath, para 20.  Back

301   Q 235 (Baroness Hale).  Back

302   Q 116 (Lord Justice Goldring), Q 216 (Baroness Hale). Back

303   See, in particular, Tribunals, Courts and Enforcement Act 2007, section 6.  Back

304   Written evidence, para 20. Back

305   Recommendation 1.  Back

306   Op. cit., p 11.  Back

307   Q 33 (Professor Alan Paterson), Q 109 (Lord Justice Goldring), Q 110 (Mrs Justice Macur), Q 233 (Baroness Neuberger), Q 233 (Baroness Hale), Q 258 (Lord Neuberger MR), Q 258 (Lady Justice Hallett), Q 261 (Cordella Bart-Stuart), Q 310 (Baroness Prashar), Q 393 (Lord Chancellor), Q 394 (Lord McNally).  Back

308   Q 110 (Mrs Justice Macur), Q 234 (Baroness Neuberger), Q 258 (Lord Neuberger MR), written evidence by Judicial Executive Board, para 6.  Back

309   See below, para 185. Back

310   Q 233 (Baroness Neuberger); see also Q 258 (Lord Neuberger MR) Back

311   Q 233 (Baroness Hale), Q 258 (Lord Neuberger MR), Q 318 (Baroness Hale), Q 372 (Christopher Stephens), Q 393 (Lord Chancellor).  Back

312   Q 233 (Baroness Neuberger), Q 394 (Lord McNally). Back

313   Q 233.  Back

314   Q 33 (Professor Alan Paterson), Q 109 (Lord Justice Goldring), Q 258 (Lord Neuberger MR), Q 393 (Lord Chancellor), Q 394 (Lord McNally).  Back

315   Q 278 (Cordella Bart-Stuart), Q 63 (District Judge Tim Jenkins).  Back

316   This is detailed at Q 167 (Lord Judge CJ).  Back

317   Q 61 (Judge Isobel Plumstead).  Back

318   Q 33 (Professor Alan Paterson), Q 61 (Judge Isobel Plumstead), Q 111 (Mrs Justice Macur), Q 111 (Lord Justice Goldring), Q 258 (Lord Neuberger MR), Q 311 (Baroness Prashar), Q 397 (Lord Chancellor), written evidence by Judicial Executive Board, para 6.  Back

319   Q 61 (Judge Isobel Plumstead).  Back

320   Q 258; see also Q 33 (Professor Alan Paterson).  Back

321   Q 278.  Back

322   Q 258 (Lord Neuberger MR), Q 318 (Baroness Prashar), Q 372 (Christopher Stephens), Q 397 (Lord Chancellor). Back

323   Q 320 (Baroness Prashar), Q 372 (Christopher Stephens).  Back

324   The last judge not to be subject to compulsory retirement was Lord Denning MR, who retired in 1982 at the age of 83, having held high judicial office for 38 years. Back

325   HL Deb 16 June 1992 col 122. Back

326   The current retirement provisions for magistrates are contained in the Courts Act 2003. Magistrates cease to be able to exercise the powers of the office on reaching 70. Back

327   HL Deb 16 June 1992 col 122. Back

328   Ibid., per Lord Mackay. Lord Taylor of Gosforth CJ observed in the same debate (at col 142) that the judiciary was in favour of the general retirement age of 70  Back

329   The two serving Justices who are not subject to the higher retirement age are Lord Reed and Lord Sumption, both recently appointed to the Supreme Court.  Back

330   Lord Collins (retired Justice of the Supreme Court) has sat as a member of the Supreme Court under these provisions, and Sir Stephen Sedley (retired Lord Justice of Appeal) has sat as a member of the Judicial Committee of the Privy Council on the same basis. Back

331   Introduced by the Employment Equality (Age) Regulations 2006 which came into effect on 1 October 2006.  Back

332   Written evidence by Sir Konrad Schiemann, and by Richard Cornes and Charles Banner, para 21.  Back

333   Q 277 (Cordella Bart-Stuart), Q 277 (Association of Women Solicitors), Q 299 (Lord Woolf), Q 299 (Lord Carswell), written evidence by the Law Society and by Professor Alan Paterson, para 16.  Back

334   Q 277 (Association of Women Solicitors), Q 277 (Association of Women Barristers), written evidence by the Law Society.  Back

335   JAP 04 (Sir Konrad Schiemann).  Back

336   Q 277 (Cordella Bart-Stuart), Q 277 (Association of Women Barristers). Back

337   Lord Collins was appointed as a Lord of Appeal in Ordinary on 21 April 2009, and transferred to the Supreme Court on its creation on 1 October 2009. He reached the mandatory retirement age on 7 May 2011.  Back

previous page contents next page

© Parliamentary copyright 2012