The Judicial Appointments Commission (JAC) is kick-starting the search for 21 new High Court judges tomorrow (12 February).
The competition, which is the first under new procedures, is looking for six new Chancery judges and 15 for the Queen’s Bench Division (QBD).
Under the reformed procedures, successful candidates are guaranteed appointments to the bench once vacancies arise.
Commissioner Edward Nally, who is chairing the High Court competition, says the selected candidates should find themselves made up to the bench within a year from this October.
“This is the first time we’ve introduced a set timeframe which gives the candidates the opportunity to smoothly extricate themselves from practice and any other commitments,” says Nally. “This was something quite difficult to do under the old process, which was uncertain, as they could be called at any time.” During the last High Court round, candidates were placed in a pool and could be called to the bench without much prior warning and with no guaranteed appointment to the High Court.
Nally, a former president of the Law Society, says there are still a handful in a pool for Chancery and QBD work who will be affected by the new measures.
The JAC contacted those concerned last week to clarify that the pool is expected to remain open until recommendations from the forthcoming exercise are accepted by the Lord Chancellor. This is expected in July.
On the new High Court competition, Nally wants barristers, solicitors and legal academics from all walks of the legal profession to apply – not just those who are well known to the judiciary.
“We can only work with the materials we have,” says Nally. “If we don’t have solicitor applicants then we have no opportunity to select them.”
It is exactly this argument that Nally applies to the recent criticisms that the judicial appointments process is not providing any diversity.
Since last September, 12 High Court judges have been appointed – and all have been white male former barristers.
The lack of black people, other minority ethnics and solicitors last week led the Law Society to criticise strongly the judicial selection process.
Andrew Holroyd, president of the Law Society, says one of the main reasons behind the creation of the JAC in 2005 was to replace secret soundings and remove the perception that the appointment process is an old boys’ network. But recent appointments to the bench do not alleviate this perception, he says.
“As long as judicial support is an important factor in judicial selection, a large proportion of very able lawyers who don’t have work or social contacts with judges will be at a disadvantage,” adds Holroyd. “This includes those who historically have been less likely to join the judiciary, such as women, candidates from black and minority ethnic backgrounds and – especially for recorders and senior appointments – solicitors.”
Nally emphasises, however, that the commission is trying to reach out to those not so well known to the judiciary.
“We’re taking as much of a holistic approach as we can,” he says. “This means including references from, perhaps, a charity setting.”
The commissioner says the JAC has been engaging with the Law Society and major law firms to try to get more applicants through.
“There’s a myth that the bench is the exclusive domain of the bar or the judiciary itself,” says Nally. “That’s not the case. Law firms have to recognise that there’s a cultural issue where solicitors are not looking at the bench as a natural option. They have to encourage their highest calibre to apply to us.”
Nally is urging law firms to suggest judicial office as an option to their partners and senior associates who are looking for alternative careers. “That would provide a starting point for the cultural shift that’s needed within firms,” he argues. For Nally, the senior partner at Bolton-based firm Fieldings Porter Solicitors, a key bone of contention is that transactional lawyers rule themselves out of applying for the judiciary.
“When we’re looking for judges we’re looking for candidates with judge craft,” explains Nally, who is himself a commercial lawyer. “It’s a common misconception that advocacy is absolutely essential, but this isn’t necessarily the case.”
He explains that often the complex cases are paper-based, with a need to digest a large amount of complex information. In such situations the skills of transactional and corporate solicitors or commercial barristers would be extremely useful. “So these lawyers shouldn’t think of themselves precluded for their lack of advocacy,” adds Nally.
The Law Society’s other major concerns include the efficiency and effectiveness of the judicial appointments system.
Holroyd says solicitors deciding to apply for the judiciary are undermined by the unacceptable length of the process. “Some appointments can take 22 months and, although this isn’t the average, it will typically take several months before new judges can take up their duties,” he says. “This presents specific problems for solicitors, who will be discouraged from indicating they have an interest in judicial appointment because of the uncertainty this creates over their future within their partnerships.”
Nally says the new reforms will help ensure the level of certainty that the Law Society is concerned about. Regarding the length of time, Nally stresses that only a small part of the process is controlled by the JAC.
“We’re the jam in the middle of the sandwich,” says Nally. “Before selection competitions can be started by us, a vacancy notice detailing the number of candidates we need to recruit needs to be signed off by the Ministry of Justice and afterwards by the Lord Chancellor. These stages we can’t control.”
The final issue for the Law Society is that privately educated white males continue to dominate the High Court bench. Out of 108 High Court judges there are 10 women, one member of an ethnic minority and one former solicitor. To this, Nally says the commission can only appoint on merit, while the JAC can only work with what it is given.
The only way, therefore, to break the dominance of privately educated white male barristers is for more lawyers and legal academics to put themselves forward.
•The JAC panel for the competition is chaired by former Law Society president Edward Nally, sitting with Jonathan Sumption QC of Brick Court Chambers, Lady Justice Heather Hallett, magistrate Dame Lorna May Boreland-Kelly and another senior judicial member, who has not been appointed yet.
•To apply barristers and solicitors should broadly have spent 10 years in practice or been a circuit judge for at least two years, as the Lord Chancellor requires that there should have been some form of judicial sitting.
•In the last High Court round there were 144 applications for 25 candidate positions, of which 21 were successful.
•The process takes 19 weeks. Under the Department for Constitutional Affairs it took the equivalent of 24-25 weeks.