Constitutional reform: A new way of appointing Judges
Response from the LSLA to the July 2003 consultation paper
The London Solicitors Litigation Association ("LSLA") seeks, through its 800 solicitor members and strong links with a wide number of professional bodies, to represent nearly all civil litigation practices in London. It has a long track record of responding to consultation papers and has been requested to respond to the current consultation paper. Yet it is surprising that the LSLA is not listed as one of the consultees in annex D to the paper.
The importance of the position of the LSLA is obvious not only from the objectives of the paper itself but also from the unarguable conclusion reached in every previous consultation exercise that the present system of appointments seriously under-represents three groups; namely, solicitors, women and ethnic minorities. The under representation of solicitors is obvious from the fact that although there are some 85,000 practising solicitors in England and Wales, only one currently sits as a Judge in the High Court which is otherwise dominated by barristers drawn from a pool of only 10,000 or so practising barristers. Solicitor advocates of course face many hurdles in seeking appointment including:
1. The traditional long delay between the time of application and knowledge of the outcome which can leave solicitor candidates in an uncertain position within their firms, because once they apply they can be perceived as being no longer committed to the commercial priorities of the firm (a syndrome sometimes referred to as "career blight"). Anecdotal evidence suggests that in some firms the problem is exacerbated by discouragement to solicitors in their prime to apply for appointment.
2. Most solicitor applicants are not well known to senior Judges. An obvious stepping stone to appointment would be to be appointed as a Deputy High Court Judge. However, to date these part-time posts have been granted by nomination only, with no scope for application. In practice, therefore, such appointments have been subject to the patronage of the heads of division and thus tended to favour barristers.
The lack of attention given to increasing representation of solicitors in the higher costs is odd in so far as many senior solicitors, by virtue of their role with clients, often have wider experience of clients and consumers than Counsel who have spent an entire professional career at the Bar. Solicitors may thus more easily fulfil the criterion of "understanding of people and society" which the consultation paper correctly identifies in paragraph 8 as one of the important criteria for appointment to higher judicial office.
The LSLA considers that the core of the problem has been the longstanding inadequacy of the current system of appointment relying as it does on a process which is geared to appointment from the Bar notwithstanding its objective to encourage appointment from anyone with sufficient merit. Given the commitment by the Government and the DCA to a "fresh start" on judicial appointments, it is not necessary in this response to discuss in detail the merits and demerits of the current system. The LSLA supports the commitment on the part of the Government to adopt a modern recruitment practice which takes full account of best practice on equality and diversity as part of a fully independent and transparent process.
As a general observation on the consultation paper it appears to do little to address the role that a new Judicial Appointments Commission might have in developing career paths for lawyers, in particular, younger solicitors, women and ethnic minority candidates. There may, for example, be merit in having a "fast track" system for appointment of district judges of experience to the Circuit Bench. As things stand, such appointments are dominated by applicant Recorders which itself is dominated by appointments from the Bar. The LSLA thinks it important to define a career path which will encourage Tribunal Chairs, Social Security Commissioners, Coroners, Supreme Court Masters and District Judges, as well as solicitors, to seek appointment. As part of this process the Commission could make more explicit a range of experience typically to be demonstrated by successful applicants, so that younger solicitors could plan their careers and make appropriate choices early on if they wish to have the option of judicial service at a later point in their careers.
Question 1 - An Appointing Commission or a Recommending Commission or a Hybrid Commission
We favour a fully independent appointing Commission responsible not only for the appointments which the Lord Chancellor currently makes but also for those above that level and without any Ministerial involvement. We do not see the need for any continued linkage between the appointment process and the responsibility of Parliament or Ministers. The goal of a fully independent appointing process is obviously correct. Full independence means just that. Any continued linkage with Ministerial discretion would seem to us to detract from this objective. If there is to be no Ministerial discretion then it becomes even more difficult, in our view, to justify Ministerial involvement. Involvement of this nature would seem to be little more than a consequence of the historical role of Ministers, on behalf of the Crown; a matter which we think should be overcome in modern society with suitably corrective legislation which, of course, is well within the power of Parliament.
In our view, the paper provides little justification for the proposal that the Commission might directly make all appointments currently made by the Lord Chancellor (for example at High Court level) but should nonetheless be limited to advising the Queen on appointments above that level. The suggestion that some Ministerial accountability to Parliament is justified is in our view misplaced. Accountability to Parliament could only mean the involvement of Parliament which would be inimical to the objective of separating the political from the judicial appointment process (an objective which the paper otherwise endorses). We recognise that this may involve some additional cost insofar as the Commission will need its own agency, but we believe this is justified. (As stated below, we believe that there should be some check and review process on the Commission and for that reason we support the proposal to establish an Ombudsman with powers of review.)
Question 2 and Question 3
Not relevant on the basis of our answer to question 1.
Question 4 - Special appointments to deal with senior appointments?
It follows from our answer to question 1 that we do not think there should be any special arrangements for dealing with senior appointments. This is on the assumption that the Commission will regard consultation with the senior judiciary as an important part of the process of all appointments, but particularly for the higher Courts. We also see no reason why the Secretary of State for Constitutional Affairs should not be directly consulted in the process. However, we do not see the need to extend this role to a right to appoint, with the process reversed so that the role of the Commission is merely one of recommendation. Again, such a proposal detracts from the main objective of independence which should not be seen to be compromised in any way.
Question 5 - Role of the Commission in part-time work for retired Judges
We agree that the question whether part-time work as Deputies is appropriate and required for Judges who retire before the compulsory age is essentially an operational matter and as such should be authorised by the Lord Chief Justice with the involvement of the Secretary of State and the Court Service. We see this as distinct from the process of appointing Judges.
Question 6 - Arrangements for the appointment of Magistrates
We broadly support the option set out in paragraph 65, namely that local nominations of lay Magistrates should be forwarded by the local Advisory Committees to the Commission for formal appointment by the Commission.
Question 7 - Appointment of Coroners
We agree that the process for appointment of coroners should accord with that of other judicial office holders.
Question 8 - Tribunal appointments
We agree that Tribunal appointments should be the responsibility of the Commission under the arrangements discussed in paragraphs 68 and 69.
Question 9 - Allocation of responsibilities
We agree that the Commission should not be involved in the allocation of judicial responsibilities which should remain primarily with the Lord Chief Justice working in partnership with the judiciary and the Court administration.
Question 10 - A separate body with a reviewing and complaints function?
We agree that there should be a separate body with an Ombudsman role to consider complaints from candidates about the appointment process. Such an office would better serve the need for public confidence in the transparency and independence of the Commission which we think ought to be subject to an independent check and balance to deal with the possibility of mistake and oversight. Removal of the role of a Minister (as we believe is appropriate) reinforces the need for an Ombudsman role.
Question 11 - The formal status of the Commission
Consistent with our view that the Commission should be entirely independent of Parliament, we would favour its status as a non-departmental public body with the ability to recruit its own staff. This does not in our view preclude it from being able to draw on Civil Servants within the DCA or other departments of Government. That would be a matter for the Commission to determine from an independent standpoint.
Question 12 - Functions and responsibilities of the Commission and the Government
We agree with the proposal for the Commission to take on the functions relating directly to the appointment process. As regards the policy relating to appointments, we believe that this ought to reflect the democratic views of society expressed through Parliament, and that the Government is in a good position to identify the criteria. Provided there is a formal requirement on the part of the Government to consult with the Commission about overall policy, we think the balance proposed is about right. The important point, however, is the need for consultation. The failure on the part of the LCD to reflect issues previously raised concerning the difficulties in achieving solicitor appointments is such that we feel that without a material involvement on the part of the Commission in setting the policy agenda there will be no significant change to accommodate solicitor applicants. Particular attention needs to be paid to the difficulty in achieving appointments from appropriate solicitor candidates who are likely to be partners in law firms and thus unable easily to comply with current sitting requirements for Recorders.
Question 13 - Whether to task the Commission with establishing how best to encourage a career path
We see no downsides to the Commission being tasked with examining how improved procedures can encourage applications for judicial office from a wider range of qualified candidates. We would add that the suggestion that the terms and conditions of judicial office and workloads may not be "family friendly" may miss the point that many judicial positions may be more family friendly than those found in traditional professional life with its client driven limitations on part-time working for women and others. To the extent that part-time judicial positions are widened to a wider group of candidates, the scope for women to be appointed to those positions would in our view increase. We agree that at the end of the day there should be no or at least no material departure from the principle of appointment on merit. For that reason we would be cautious about the proposal to reserve a number of places for particular types of candidate. Instead, we think the better course is to widen the pool of candidates and encourage them through career training and encouragement to apply, rather than to run the risk of short-circuiting that process through specified quotas. It would be a mistake if the strength of the judicial system was in any way compromised by a perception of appointment through quota.
Question 14 - What other steps could be taken by the Commission to encourage diversity?
We have already mentioned a few in this paper and repeat our comments in Questions 12 and 13. Expansion of part-time appointments together with responsibility for developing a career path to encourage solicitors to consider judicial office at an early stage in their career would assist. Opening up the pool of talent to candidates who might undergo evaluative training with the Judicial Studies Board might also encourage candidates from ethnic minority backgrounds to put themselves forward for consideration. Such steps would also lessen the burden on candidates to nominate a specified number of senior practitioners who have close knowledge of their work.
Whilst we do not favour a confidential system of judicial career training, we do believe that greater exposure of solicitors and other unrepresented groups to part-time positions, coupled with evaluative training with the Judicial Studies Board, would provide firmer information on which appointments of currently unrepresented groups could be made. This might also facilitate the desirable objective of opening up the scope for appointment to practitioners who retire in their 50s and who may not feel able to start judicial training at that late stage in the position of Assistant Recorder or the like. On the contrary, we believe that the Commission should be tasked with identifying specialist judicial roles for solicitor candidates who, given the nature of the profession, are likely to be as well qualified as many Judges in those specialist fields in which they practice as partners. To exclude such candidates because, as will often be the case, they have little or no experience of criminal or related work represents a failure in thinking about how best to deploy the talent which is certainly available within the solicitors' profession.
In all this we cannot stress enough the importance of ensuring that the proposed reform is not merely constitutional but also substantive in nature which we believe will only arise if all the hurdles to appointment and the achievement of diversity are considered by the Commission and formally addressed as part of its overall role (including by way of recommendations to Government within the formal consultation process referred to in our answer to Question 12).
Question 15 - Judicial discipline and complaints against Judges
Consistent with our view there should be an Ombudsman role to review the Judicial Appointments Commission in limited respects, we believe that public confidence would be better served by judicial discipline and complaints being handled by an Ombudsman rather than by the Lord Chief Justice. We see no good reason why the Ombudsman should not have the power to discipline and remove a Judge from office. We believe this should apply to the higher Courts. We are open-minded as to whether the Ombudsman or more local offices should deal with complaints against Judges sitting below High Court level. It follows from our comments that we would agree with the view that it would be odd for the Commission, being responsible for appointments, also to be responsible for complaints and removal.
Question 16 - Should the Commission have a role in an internal grievance procedure?
The question envisages primarily a complaint by Judges against the Court Service, the DCA etc. Being primarily Government agencies we would consider that the grievance procedures to be adopted ought to be internal to those departments. That said, the need for independence and separation from Government would, in our view, justify a procedure and practice which involved the Commission in all complaints raised by Judges. We believe that the Government should seek to establish a process which involves the Commission in this respect so far as appropriate.
Question 17 - Statutory reinforcement of the responsibility of the Secretary of State for protecting judicial independence?
If our recommendation for a fully independent Commission is accepted, there would seem to us to be less need for statute to enshrine the responsibility of the Secretary of State in this respect. To the extent that the Commission is not fully independent, then we agree that statutory provision to this effect would be appropriate.
Question 18 - Responsibility for appointing Commission members
We broadly agree with the Government's proposals for appointment to be made by the Queen on the basis of recommendations from a recommending body but would welcome proposals to ensure that this is not directed by the DCA or the Permanent Secretary; a wholly independent chair would be a sensible step. We are less concerned with the precise constitution of that body than we are with the need for the component groups of the Commission to be drawn from specified sectors and constituencies (question 19).
Question 19 - Membership and constitition of the Commission
We note the proposal for 15 members. We suspect this may be fewer than are required. While we broadly agree with the proposal for membership to be split as to a proportion of judicial members, a proportion of legally qualified members (to include any academic lawyers) and a proportion of lay members, we also believe that it is critical for the proportion of legally qualified members to be sufficiently large to ensure that there is sufficient overall representation of solicitors (reflecting the size of the profession and the very substantial under-representation of solicitors within the judiciary). If the proportion to accommodate solicitors is not therefore enlarged, there is a risk that once it accounts for academics the resulting number of solicitor members may be only two or so, out of a 15 strong Commission, or perhaps only three out of a 20 strong Commission, which we believe is an insufficient representation.
By broadening the size of the Commission there will also be scope to ensure that the Commission contains an appropriate member of female and ethnic minority members. Without these stipulations there is a danger that the objectives of the new system will be lost, at least so far as the perception of the public is concerned. We also think it important that at least some of the judicial or legally qualified members should not have practised for all or most of their professional career in London. Taking into account all these needs we suspect that it may be difficult for the Commission to be limited to only 15 members. We suspect that 20 may be a more appropriate number.
Question 20 - Who should chair the Commission?
On balance we believe that an eminent non-legal person acting as Chair would help to ensure public confidence in the independence of the Commission and reinforce the lay voice in the Commission. Provided the person is sufficiently eminent and respected, we do not think that there is a need to appoint a senior Judge as Chair.
Question 21 - Appointment of Commission members
On balance, we prefer appointment of all members (save possibly that of Chair) following open competition. The danger with nominated members is that it would be difficult to identify specific groups which would properly be chosen for a long role on behalf of particular constituencies. We believe the better course is to identify the composition of the Commission (see our comments on question 19 above) and then seek open competition for appointment to those positions. It follows that we would not propose that particular bodies be given a statutory right to appoint members to the Commission. We do, however, have no difficulty with the proposal that such bodies should benefit from a requirement that they be consulted and that they have the option to put forward candidates for application for the selection process. Indeed, the ability of those bodies to put forward such candidates might assist the appointment process and ensure greater public confidence in the candidates ultimately appointed.
Question 22 - Working arrangements for Commission members
We see no reason why Commission members should not be appointed on a part-time basis. This would broaden the pool of candidates to apply for appointment. However, we do not understand why members should be appointed on a permanent basis. We see no reason why membership should not be for a term of, say, five to seven years, with scope for renewal through further open competition. We also believe that all members should be paid a salary for their work save where they are already in full-time State employment (such as Judges).