Back in the mists of time, just before the Nolan principles got going, when I was casting about for what to do next after a career in broadcast journalism culminating in Editor of Channel 4 News, one could just find a couple of classy referees and arrive on the Cabinet Office list - the appointments then came to you. And within weeks the very first approach arrived - from the Lay Commissioner at the Bar Council - asking me to be a lay representative on what was then the PCCC.
I loved the PCCC. Then, lay members both sat on the committee and served on the tribunals. Only right at the end of my term, (as a result of an application made by Anthony Speaight QC in a slightly dreary case arising from barristers falling out between themselves), where I was sitting as one of three panel members, did the system change because of the perceived conflict of interest between sitting on the committee and hearing the cases. It was very much more perceived than real, given that the committee duty only came up every few months and we were never assigned to sit on a case discussed at a meeting we had attended. But the bizarre thing – I thought at the time and still do now – was that the Bar Council – who you would think would be in the vanguard – was almost the last regulator to split the functions.
The PCCC gave me rather a warped perception of barristers: I only met either the hugely committed, compliant and able who sat on committees and panels, or those appearing in front of them: the maddest, saddest and most wholly disorganised of those at the Bar. And maybe two or three of the baddest – though the level of plain crookedness was reassuringly low. But of the 9,500-odd ordinary barristers in between, I saw nothing at all.
A side effect of PCCC work was that I sat on policy sub-committees too – the most memorable two being David Bean’s “Future of the Bar” and the “Response to Clementi”. Both were stimulating and engaging, and I met a whole range of interesting people. But the conservatism of the Bar was striking. Really not earth shattering changes – such as bringing in the minimum wage for pupils - were seen as likely to be the end of justice/law/democracy as we know it.
My Bar Council experience undoubtedly helped to get me appointed as an inaugural lay commissioner at the Judicial Appointments Commission – where my term has just finished.
The JAC came in with a difficult task: to maintain or increase the quality of judges appointed; to do it with transparent processes and to provide a more diverse judiciary at the same time. The Act may say only that the selections are to be from a “more diverse pool” but the task was undoubtedly to increase the numbers and proportions from under-represented groups such as women, black & minority ethnic, solicitors and the disabled. And the first six years have seen some undoubted successes. Of course not every appointment has been brilliant and acclaimed. That’s always the way with appointments – it’s just not an exact science. The problem with Judicial ones of course is that, if there is a poor decision made – and with all the methods, quality assurance, references, checks and all the rest, sometimes it will happen – the results can be with us for twenty years or more.
But the JAC has appointed good solicitors – mostly in tribunals and at the District Judge end though still disturbingly few at High Court and above. The number of women has certainly increased even if by not as much as would be desirable and ditto BME. But it’s not easy. And there are still obstacles. After six years, there are still some unresolved yet critically important issues.
The first is judicial appraisal. How can we appoint people into what are effectively training roles – such as Recorder – and then do nothing to assess whether they are any good? Tribunal members and Deputy District Judges are appraised. You would think it was more important, not less, to do the same for recorders, Circuit and High Court judges. It doesn’t have to be expensive peer review, judicial time used, although that would be desirable. But 360 degree appraisal from counsel, court staff, solicitors, litigants, added to appeal data, would surely be an advance. It’s hard to find other areas of employment – especially in public service – where there’s no appraisal at all. The armed services, for instance, as my co-commissioner Geoffrey Inkin frequently pointed out, has rigorous appraisal at all levels. Some senior judges support appraisal publicly, so why should the judiciary not have something similar?
The second is the section 9 debacle – concerning the selection of deputy High Court Judges. I couldn’t believe that there was still any route to High Court appointment that was wholly outside a proper JAC process when we started. Recorders – another route to permanent appointment – are rigorously selected. A startling 80% of those appointed to the High Court are Deputy High Court judges. But there is no similar process for appointing them. Things have got better. A bit. Potential section 9 judges are asked to apply and demonstrate how they are qualified. But there are no advertisements, no interviews, no formal references. Yet the JAC (it says in the Act) has to concur – though in my time some were passed back for more information or reconsideration - with the results of a flawed process which still looks like jobs for the insiders and potentially brings the JAC into disrepute.
The third is the challenge of appointing a more diverse judiciary. Judges and barristers are cautious. When I started working with the profession, I don’t think it had occurred to me how deferential your world is, though I did appreciate that it was quite conservative. If you define “merit” as being “someone like me”, then that’s who you will get. They will probably be fine. But there are others who would also be as good, who won’t get appointed. And if every appointee has – and this is my least favourite phrase after six years – “to hit the ground running”, then the judiciary is going to look just as it does now for a very long time.
And there is a whole range of issues about how the JAC appoints. The process depends very largely on references at the moment – they are used much earlier than in other areas of recruitment. But I saw some outrageous references, even towards the end of my term. An “assertive” man sounds like A Good Thing. An “abrasive” woman certainly doesn’t. “Good company at lunch” or “father the principal of an Oxbridge college” really do appear in references as reasons to appoint. Maybe judges and senior barristers need reference-writing training – given these are so critical. The good ones are fantastically useful, the bad such a wasted opportunity.
Short-listing by test. Honestly, it’s the only way if you have literally hundreds of applicants – sometimes into the mid–thousands. But testing must move online as soon as it can – it’s nearly there. That gives candidates privacy and convenience while being cheaper and as effective for the JAC. And for the big exercises, why should people fill in long forms and approach referees before the short-listing test? It would be more efficient and less onerous all round if a bare minimum was required until you were through to the next stage. And that could be a paper sift from longlist to shortlist. So there would be an opportunity, on the margins, for judgment to play its part.
One last plea: not all change is for the worse, not all policies are out to get you. Non-barristers can make good judges and decent advocates (OK, if the JAC teaches nothing else, it’s to appreciate when it’s time to declare a conflict of interest: I have moved to the Solicitor’s Regulation Authority!) Shortlisting by test is not there primarily to enable non-barristers to be selected, and trying to make the judiciary more diverse does not mean that you, as an individual, might as well not bother. Barristers are still wholly dominant in the higher judiciary. It’s vanishingly unlikely this will change radically or soon. But some movement is positively desirable and it would be surely advantageous if Counsel’s readers could appreciate that.
Sara Nathan has spent the past six years on the Judicial Appointments Commission