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
174. Appointment to the judiciary in the United
Kingdom is based on a number of years of prior non-judicial legal
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.
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
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.
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.
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."
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."
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.
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."
178. Witnesses also drew our attention to the
much greater diversity of the tribunals judiciary,
to the difficulties facing tribunals judges whose experience is
not fully taken into account when applying to appointment to the
and to the need for greater use of deployment from the tribunals
judiciary to the courts judiciary.
Lord Justice Carnwath set out the specific barriers to deployment
between the courts and the tribunals judiciary which exist under
"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."
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."
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."
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,
though there were some contrasting views as to whether appraisals
should apply to the senior judiciary
and the use which should be made of such appraisals.
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."
Secondly, appraisals improve the quality of the judiciary by assessing
any weaknesses in performance and enabling judges to develop.
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.
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."
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.
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.
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.
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.
A lack of resources was the main reason cited by many witnesses
for there not being any universal system of appraisal.
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
and talented individuals given no encouragement to seek promotion.
Improving the, already high, quality of the judiciary is a cost-effective
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.
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
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.
An alternative suggestion made was that appraisal records be made
available to those providing references as a source of relevant
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.
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.
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.
190. A general judicial retirement age of 70
was introduced by the Judicial Pensions and Retirement Act 1993.
The rationale behind the change was to introduce consistency to
the judicial retirement system.
The age of 70 was settled on by the Government of the day following
consultations between the Lord Chancellor and senior members of
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).
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.
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,
there is a case to be made for having no set retirement age at
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. 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.
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
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.
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. 
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
The recent appointment of Jonathan Sumption direct from the Bar
was an exception. Back
N Garoupa and T Ginsburg, Hybrid Judicial Career Structures:
Reputation vs Legal Tradition, Journal of Legal Analysis 2011. Back
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
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
Written evidence. Back
Q 210. Back
Written evidence, para 4. Back
Written evidence by Lord Justice Carnwath, para 20. Back
Q 235 (Baroness Hale). Back
Q 116 (Lord Justice Goldring), Q 216 (Baroness Hale). Back
See, in particular, Tribunals, Courts and Enforcement Act 2007,
section 6. Back
Written evidence, para 20. Back
Recommendation 1. Back
Op. cit., p 11. Back
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
Q 110 (Mrs Justice Macur), Q 234 (Baroness Neuberger), Q 258 (Lord
Neuberger MR), written evidence by Judicial Executive Board, para
See below, para 185. Back
Q 233 (Baroness Neuberger); see also Q 258 (Lord Neuberger MR) Back
Q 233 (Baroness Hale), Q 258 (Lord Neuberger MR), Q 318 (Baroness
Hale), Q 372 (Christopher Stephens), Q 393 (Lord Chancellor).
Q 233 (Baroness Neuberger), Q 394 (Lord McNally). Back
Q 233. Back
Q 33 (Professor Alan Paterson), Q 109 (Lord Justice Goldring),
Q 258 (Lord Neuberger MR), Q 393 (Lord Chancellor), Q 394 (Lord
Q 278 (Cordella Bart-Stuart), Q 63 (District Judge Tim Jenkins).
This is detailed at Q 167 (Lord Judge CJ). Back
Q 61 (Judge Isobel Plumstead). Back
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
Q 61 (Judge Isobel Plumstead). Back
Q 258; see also Q 33 (Professor Alan Paterson). Back
Q 278. Back
Q 258 (Lord Neuberger MR), Q 318 (Baroness Prashar), Q 372 (Christopher
Stephens), Q 397 (Lord Chancellor). Back
Q 320 (Baroness Prashar), Q 372 (Christopher Stephens). Back
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
HL Deb 16 June 1992 col 122. Back
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
HL Deb 16 June 1992 col 122. Back
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
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
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
Introduced by the Employment Equality (Age) Regulations 2006 which
came into effect on 1 October 2006. Back
Written evidence by Sir Konrad Schiemann, and by Richard Cornes
and Charles Banner, para 21. Back
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
Q 277 (Association of Women Solicitors), Q 277 (Association of
Women Barristers), written evidence by the Law Society. Back
JAP 04 (Sir Konrad Schiemann). Back
Q 277 (Cordella Bart-Stuart), Q 277 (Association of Women Barristers). Back
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