Judges: JAC has five options when it receives negative material on candidate
The Judicial Appointments Commission (JAC) was wrong to adopt a practice of never putting negative material to a candidate save in exceptional circumstances, the Court of Appeal has ruled.
This placed “an inappropriate fetter” on the JAC’s discretion, said the Master of the Rolls, Sir Geoffrey Vos.
However, the shortcomings in the process identified by the court were not sufficient to uphold District Judge Katie Thomas’s challenge to the fairness of the process of consultation, which had been touted as a return to ‘secret soundings’.
DJ Thomas, who practised in crime at the self-employed Bar and as in-house counsel for a firm of solicitors, became a salaried district judge in 2018 and applied to become a circuit judge three years later.
Though the JAC’s selection panel recommended she be selectable in both the criminal and civil jurisdictions, its selection and character committee reduced her grade for the competence ‘working and communicating with others’, such that she was not selectable at that time.
This was on the basis of negative material received from the statutory consultee, Lord Justice Haddon-Cave, then the deputy senior presiding judge, who had collated feedback from relevant leadership judges, so-called sub-consultees. It was not clear who provided the comments.
DJ Thomas only applied for disclosure of the material during the hearing and Vos MR held that it was “far too late” to do so.
The court – with Lord Justice Underhill, vice-president of the Court of Appeal (Civil Division), and Lady Justice Nicola Davies also sitting – found no bar to a statutory consultee gathering comments from sub-consultees and so it was not unlawful for the JAC to place some reliance on it.
However, it was “unfair” that it was not made clear to applicants that this can happen, the court said, a failure that the JAC has “partially” corrected but needed to go further to ensure.
The JAC’s practice never to put negative material to a candidate save in “an exceptional set of circumstances” placed an inappropriate fetter on its discretion.
“The JAC seeks to defend that practice on the basis that any other would make the selection exercises unwieldy and difficult,” said Vos MR. “I do not accept that argument.”
Rather, it should consider five options:
- Disregard the negative material;
- Seek to explore the negative material at interview without making the candidate aware of it or making any direct reference to it (which is what the JAC did here);
- Put the gist of the negative material to the candidate, whilst preserving the confidentiality of the consultee and sub-consultees;
- Seek the consent of the consultee to disclose the negative material for the candidate’s comments and then do so, if consent were granted; or
- Even if such consent were refused, deciding to put the negative material to the candidate anyway under the confidentiality provisions of section 139(4)(b) of the Constitutional Reform Act 2005.
Vos MR said: “It is not any more burdensome for the JAC to have to consider the five options in every case. They already have to decide how to deal with negative material. It is just a question of being aware of the options and considering which is appropriate in the circumstances.”
He went on that the court could only speculate what the negative material about DJ Thomas was and so could not decide whether the JAC’s actual use of it was unlawful, unfair or in violation of her article 8 (right to a private life) rights.
“It does appear, however, from the transcript of the claimant’s interview that the use made of it by the JAC may well have been entirely appropriate,” he added.
Further, the unfair failure to inform candidates in advance about the sub-consultation process “comes nowhere near the kind of extreme case in which the court should, in my judgment, intervene to quash the decision made”.
Vos MR concluded that DJ Thomas had not shown that the JAC’s approach had an adverse effect on her and so dismissed her claim.
Stuart Fegan, national officer at the GMB union, who supported DJ Thomas, said: “This is an incredibly important ruling and a victory against the old boys’ network that’s dominated our judiciary for too long.
“Although the court did not quash the JAC’s decision in Judge Thomas’s specific case – largely due to insufficient information and late disclosure – she can feel truly vindicated.
“The court upheld her central arguments about the lack of fairness and transparency in the JAC’s consultation process. These rulings that are likely to reshape how judicial appointments are handled in future – and not before time.”
A JAC spokesperson said: “The JAC welcomes the Court of Appeal’s decision that the evidence did not support a finding that the process adopted in this case was unfair and that the JAC is entitled to rely on comments about candidates from sub-consultees as part of statutory consultation.
“We are fully committed to open, fair, transparent, and merit-based selection.
“We will look carefully at this judgment and consider how to further improve our guidance to candidates and consider the process when negative statutory consultation material is received.”
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