A crisis in the judiciary: Joshua Rozenberg on the High Court’s failure to staff its benches

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By Joshua Rozenberg on

Rumour has it only 19 of this year’s 25 vacancies were filled

Not enough people want to become judges. Or, at least, there are not enough people coming forward who are good enough to join the High Court.

There were precisely 100 High Court judges in post this month at the start of the legal year. With a complement of 108, the court is eight judges short — or nine given that Mr Justice Peter Smith has, in effect, been suspended on full pay for more than a year. Contrary to my prediction at the time, Smith failed to stand down in the spring and a disciplinary panel is preparing to consider complaints against him at the end of this month.

The High Court has been running below full strength for some time now. Last year, there were 14 vacancies and six posts were left unfilled. In his latest annual report, the outgoing Lord Chief Justice said that he and his senior colleagues continued to be immensely concerned about the “serious loss of morale across the judiciary and continuing dissatisfaction over working conditions, the volume of work, and pay and pensions”. Lord Thomas of Cwmgiedd added that any failure to address the problems of pay and pensions would have a serious impact on morale and on recruitment.

So, will the High Court ever be fully staffed?

“It is not uncommon for there to be a time lag before newly appointed judges take up office,” I was told by the Judicial Appointments Commission (JAC). “There will be more announcements in the coming months.”

But how many? The word on the street is that 19 appointments were approved after the JAC advertised “up to 25” vacancies earlier this year (screenshot below). Only 13 names were announced during the summer, with 12 of those judges joining the High Court on 2 October (the beginning of the legal year).

Screenshot via JAC’s website

And the JAC has already established another High Court selection exercise, with applications to be lodged by the middle of November. Again, there will be “up to 25 vacancies” across all three divisions of the High Court.

This is the second time the JAC has announced that no part-time judging experience will be needed. But, as it adds from what must be bitter experience, any solicitor or barrister who is only now thinking of putting in an application before the deadline next month has probably left it too late to demonstrate transferable skills.

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In fact, pretty much all 13 new High Court judges appointed in August and September have some judicial experience. Four were promoted from the lower ranks: Julian Goose QC, who was a senior circuit judge specialising in crime; Clare Moulder, a former Linklaters partner who sat in commercial, immigration and criminal cases; Gwynneth Knowles QC, who was a judge of the upper tribunal; and Peter Lane, a former tribunal judge who has now been appointed president of the Upper Tribunal (Immigration and Asylum Chamber).

Some of those who have come straight from the bar are strikingly young: Matthew Nicklin QC, former joint head of chambers at the media set 5RB, is 46. Julian Knowles QC, formerly an extradition and public law expert at Matrix Chambers, is 48. So is Sara Cockerill QC, a shipping specialist. And some are significantly older: Martin Spencer QC, who was at Hailsham Chambers, is 61. Jonathan Cohen QC is 66 but hardly a new boy, having sat part-time in the family division since 2005.

While Cohen has a distinguished judicial ancestor, several new judges are state-educated and were the first in their families to study at university. Akhlaq Choudhury QC was born in England to parents from Bangladesh and educated at a comprehensive near Glasgow. David Williams QC went to a comprehensive school in Leighton Buzzard. Simon Bryan QC’s education in Blackpool was state-funded.

Others demonstrate that there is more to life than being a lawyer: Amanda Yip QC, from Liverpool, had three children before she was 30 and is a strong supporter of flexible working at the bar.

So: nine men, four women; nine practitioners, four full-time judges (including, for the first time, tribunal judges); 11 barristers, two solicitors; one person of Asian descent. All things considered, quite a diverse group?

More broadly, Lady Hale is now president of the Supreme Court and Lady Black of Derwent has joined her on the bench, along with the first Welsh-speaking justice, Lord Lloyd-Jones. Lord Justice Singh is now in the Court of Appeal. Time for the JAC to rest on its laurels?

Not according to Graham Gee, a professor of public law at the University of Sheffield and Erika Rackley, a professor of law at the University of Birmingham. The two academics have recently edited a series of essays called Debating Judicial Appointments in an Age of Diversity, based on a conference they arranged.

Some of the contributors to their book speak from a position of great authority.

Sir Tom Legg was permanent secretary to the Lord Chancellor from 1989 to 1998 and, in his day, was effectively a one-man JAC. He has some interesting reflections on merit although I’m not persuaded by his suggestion that we should restore a political element in the appointments process. That still exists, as we saw when Liz Truss, as Lord Chancellor, excluded the judges’ favourite for appointment as Lord Chief Justice this year. There is speculation that Truss was doing the Prime Minister’s bidding.

Other contributions are alarmingly bland.

Christopher Stephens CBE, who chaired the JAC from 2011 to 2016, writes mainly about competency frameworks and ad hoc selection panels, about appraisals and performance metrics. Stephens admits he “would like to have seen greater numbers of diverse, non-traditional candidates joining the judiciary, particularly at more senior levels — not only from its four key target groups but also from other pools of talent such as academia, the employed bar, chartered legal executives and government lawyers”. But he does not seem to have found a way of recruiting them.

Are there any? Gee and Rackley certainly think so; and they have summarised their proposals in a freely-available post. In summary, they say:

  • The JAC must do more to ensure that the judiciary is not merely paying lip-service to diversity but actually pursues policies that will lead to faster change.
  • The JAC should take more “ownership” of the selection process for senior appointments rather than simply endorsing the judges’ favoured candidates.
  • The JAC should continue to scrutinise and improve its own processes.
  • Overall, the JAC should supply more forceful leadership on diversity. It should have greater confidence in its ability to contest the preoccupations of ministers, a self-interested legal profession and an embattled judiciary.

But what does that mean in practice? Surely merit is the only criterion for appointment?

According to Gee and Rackley, some judges still cling to a traditional understanding of merit that places a premium on advocacy skills, experience at the bar and experience in a part-time fee-paid judicial role. The authors want more appointments to be made on the basis of potential.

Judicial skills, they say, are not limited to the technical legal and advocacy abilities associated with excellence at the bar. They include communication, management and leadership skills that are needed for a successful career as a solicitor. The JAC should therefore resist the judiciary’s insistence on part-time judicial experience. This not only favours long-serving barristers, they argue. It also reinforces traditional understandings of merit.

On this basis, we can see the JAC’s “no judicial experience necessary” boast as a sign of strength rather than of desperation. And its warning that solicitors have probably left it too late to join the judiciary next year now reads more like a counsel of despair.

In their book, Gee and Rackley chart the tensions between Stephens, as chair of the JAC, and Thomas, as Lord Chief Justice.

“Inside the JAC,” they write, “it was felt that the Lord Chief Justice was second-guessing many of its decisions… For their part, some senior judges felt that the JAC lacked an effective strategy for encouraging judicial diversity while others complained that its selection processes made too many onerous demands of the senior judiciary.”

Gee and Rackley are quite right to say that the JAC should do more to publicise the improvements it has introduced already. Like other underfunded arms-length public bodies, the JAC has compromised its independence by outsourcing its media relations to the Ministry of Justice press office. When I first asked, the press office told me there were not 100 High Court judges holding office on 2 October but 100.5.

100.5? Did the reference to 0.5 of a judge mean that one judge was working for 50% of the normal working hours? If so, who was it?

We can’t tell you, said the MoJ press office. “On both counts this is personal information agreed between the individual and their head of division, and therefore it would be inappropriate to share this.”

That’s absurd. I can see that a judge working half-time for medical reasons — perhaps while recovering from illness — might want that fact to be kept confidential. But the fact that a judge was permitted to work part-time — if that is what this means — is something the judiciary should be proud of.

It also increased the headcount by half a judge. Or it did until a correction arrived. It seems there were two half-judges in the High Court last year. One has recently retired and the other has now reverted to full-time working.

The failure to recruit enough permanent judges means that the High Court will continue to rely on lawyers sitting part-time. Some of those may be practitioners of the highest calibre who don’t want to give up the day job. Others may be among the 100 applicants for the High Court bench who didn’t make the grade this time (or, no doubt, in previous years).

But there is one thing about this I find reassuring. If the JAC’s standards had been lower, it would have been perfectly possible to appoint another eight judges from those applicants. Had diversity had been the sole criterion for appointment, I imagine it would have been possible to make an even more diverse selection than the 13 whose names have so far been announced. Rightly, the JAC was unwilling to recommend candidates who did not merit appointment.

Merit must never be diluted in order to meet diversity targets. We just need to search more widely for the best judges.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. You can read his previous Legal Cheek articles here.

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