Judicial Appointments: follow-up Contents

Summary of conclusions and recommendations

The attractiveness of judicial careers

1.We recognise the growing disparity in pay between the private and public sectors, particularly at the senior levels of the judiciary. Without wishing to pre-empt the Senior Salaries Review Body’s review, we note that, given the restraints on public sector pay, it is unlikely judicial pay will increase in a way that significantly reduces this difference. The Government should address the other issues which undermine the attractiveness of the judiciary as a career path, which we consider later in this report. (Paragraph 16)

2.We do not comment on the economic circumstances in which the Government made changes to the arrangements for judicial pensions. However, we are deeply concerned that the sense of grievance created by the pensions issue has damaged morale throughout the judiciary and will have reduced the appeal of a judicial career to those who might otherwise have been thinking of one. (Paragraph 23)

3.We are concerned about the working conditions of the judiciary and the detrimental effect they may be having on retaining and recruiting judges. The dilapidated state of some courts coupled with administrative burdens, under-resourcing of staff and IT shortcomings all need to be addressed. (Paragraph 34)

4.We are pleased that the Government has said that it is committed to addressing these problems, both in partnership with the senior judiciary, and ultimately through legislation. However, a considerable investment of funds and political energy will be needed to achieve the required improvements both in the immediate future and long-term. (Paragraph 35)

5.We recognise that the concept of judges returning to practice law is controversial. We invite the Lord Chancellor and the Lord Chief Justice to examine the continuing value of the convention, and in particular, whether it serves to operate as a significant disincentive to applications for full-time judicial appointment. (Paragraph 38)

6.Given the difficulties in recruiting judges, which we address in the next chapter, the Lord Chancellor, with the Heads of the Judiciary in England and Wales, Scotland and Northern Ireland and the President of the Supreme Court, should reflect on whether the current fixed retirement age throughout the judiciary continues to be appropriate. Consideration should also be given to whether a higher retirement age would be appropriate at the senior levels of the judiciary, given that most judges do not reach the higher ranks until later in their careers. (Paragraph 45)

7.It is imperative that the independence of the judiciary is protected and that it is well-understood by the public. This does not impinge on the right of the free press to challenge or to criticise court judgments. (Paragraph 56)

8.However, there is a difference between criticism and abuse; between challenging the content of a judgment and attacking the character and integrity of the judge handing down that judgment. In such cases, the Lord Chancellor’s constitutional duty is clear—as stated in the oath of office, the Lord Chancellor must defend the independence of the judiciary. Should members of the judiciary suffer such personal attacks in future, we expect any person holding the office of Lord Chancellor to take a proactive stance in defending them publicly, as they are unable to defend themselves. (Paragraph 57)

9.We welcome the new Lord Chancellor’s commitment to be “resolute and unflinching” in defending the independence of the judiciary. (Paragraph 58)

10.We are seriously concerned about recruitment to the bench. However we also agree unequivocally with the Judicial Appointments Commission that the threshold for appointment should not be lowered in order to fill judicial vacancies. It is essential that the high quality of the judiciary, and by extension the legal system in the UK, is not compromised. (Paragraph 67)

Recruitment

11.We recognise the concerns about potential conflicts of interest if serving government and CPS lawyers undertake judicial work. However, these lawyers are an important potential source of recruits to the judiciary—and the CPS in particular has an ethnically diverse workforce which remains largely untapped. (Paragraph 88)

12.We welcome the opportunity for government lawyers to gain judicial experience, particularly in tribunals. We encourage the Lord Chancellor and the Lord Chief Justice to consider whether there are other ways in which CPS and government lawyers can gain relevant judicial experience without compromising the public perception of the independence and impartiality of the judiciary. This might involve, for example, allowing government lawyers to sit to try cases when they are either geographically removed from their normal place of work or when the subject matter lies outside their usual areas of work. (Paragraph 89)

13.We see no reason why chartered legal executives who demonstrate the requisite attributes are unable to achieve promotion beyond the district bench. We encourage the Lord Chancellor, in consultation with the Lord Chief Justice, to reconsider this. (Paragraph 95)

14.We welcome the outreach work undertaken by the Judicial Appointments Commission and the professional bodies to ensure that there are development opportunities and tools available to assist potential applicants for judicial roles. (Paragraph 112)

15.However, we are concerned about the disparities that remain between the number of solicitors and chartered legal executives applying for judicial roles and the number being recommended for appointment. Non-barrister applicants may still perceive that those with advocacy experience are preferred as candidates, and that this is in part responsible for the low application rate. A significant cultural shift is required to address this. (Paragraph 113)

16.We encourage the JAC to collect data on the reasons why applicants are not successful. We recommend that the Lord Chancellor, the senior judiciary, and all professional bodies work with law firms to encourage a cultural change within the solicitors’ profession in general, and within law firms in particular, to provide better support for solicitors applying for judicial positions. (Paragraph 114)

17.We agree with the Judicial Appointments Commission that their responsibility is to recommend appointment of the most meritorious candidates from the eligible pool, provided that the candidates themselves meet the required standards. The use of “reserve lists” identifying appointable candidates to fill unanticipated vacancies is obviously sensible, but each new competition must identify the most meritorious candidates, and may produce better candidates than those on the “reserve list”. (Paragraph 116)

Diversity

18.While there has been some improvement in the diversity of the judiciary since our last report, it has been limited. (Paragraph 147)

19.We welcome the changes made to address diversity since our 2012 report. These should make high-level judicial posts a viable option for a wider pool of potential applicants and encourage diversity within the wider judiciary. (Paragraph 148)

20.We applaud the increased emphasis on diversity training for the judiciary and professional development opportunities for potential applicants. We encourage greater emphasis on pre-application education and mentoring for applicants, especially those who belong to groups that are underrepresented in the judiciary. We also welcome the efforts being made by professional bodies to encourage applicants from a wider range of professional backgrounds for judicial roles. (Paragraph 149)

21.We recognise that it may take more time for recent legal changes and initiatives by the sector to deliver greater diversity. We therefore encourage the Lord Chancellor and Lord Chief Justice, the Judicial Appointments Commission and the legal professions to monitor progress closely and to continue to look for new ways to improve and encourage diversity on the bench. (Paragraph 150)





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