Time to reconsider ban on judges returning to practice, say peers

House of Lords: Deep concern over judicial pension dispute

There needs to be more work to encourage solicitors to apply for judicial positions and the convention that stops judges returning to practice should be reviewed, a House of Lords report has recommended.

The House of Lords constitution committee also called for chartered legal executives to be allowed to progress beyond the current ceiling of district judge.

In a follow-up report to one published in 2012, the committee said that “while there has been some improvement in the diversity of the judiciary since that report, it has been limited”.

It did, however, recognise that “it may take time for recent legal changes and initiatives to deliver a more diverse judiciary that is reflective of the community it serves”.

The three main issue it identified were the reduced attractiveness of judicial office, its impact on recruitment, and continuing concerns about the lack of diversity in the judiciary.

The report acknowledged the “growing disparity” in pay between the private and public sectors, particularly at the senior levels of the judiciary.

Even though the Senior Salaries Review Body has been charged with reviewing the situation, the committee said the restraints on public sector pay made it “unlikely” that judicial pay would increase in a way that significantly reduced this difference.

Instead, it said the government should address the other issues which undermine the attractiveness of the judiciary as a career path.

Primary among these was the damage to the judiciary morale caused by the dispute with the government on pensions changes, about which peers said they were “deeply concerned”.

They also identified working conditions, which were having “a detrimental effect on retaining and recruiting judges”.

“The dilapidated state of some courts, the administrative burdens on judges, under-resourcing of court staff and IT shortcomings all need to be addressed.”

The peers recognised that the concept of judges returning to practice was controversial, but said: “We invite the Lord Chancellor and the Lord Chief Justice to examine the continuing value of the convention [against it], and in particular, whether it serves to operate as a significant disincentive to applications for full-time judicial appointment.”

Another recommendation was that the fixed retirement age for judges should be reconsidered, particularly for the senior judiciary.

In light of the article 50 case, the committee also emphasised the importance of the judiciary being free from abuse and personal attacks by the media and the Lord Chancellor’s constitutional duty to defend its independence.

“This does not impinge on the right of the press to criticise court judgments.”

The committee heard evidence that the nature of law firms meant that solicitors found it difficult openly to pursue judicial aspirations “as it could result in being marginalised within their firm”.

It was suggested too that a low success rate was also dissuading solicitors from applying for the bench.

While welcoming the outreach work undertaken by the Judicial Appointments Commission and the professional bodies, “we are concerned about the disparities that remain between the number of solicitors and chartered legal executives applying for judicial roles and the number being recommended for appointment”, it said.

“Non-barrister applicants may still perceive that those with advocacy experience are preferred as candidates, and that this is in part responsible for the low application rate. A significant cultural shift is required to address this.

“We encourage the JAC to collect data on the reasons why applicants are not successful. We recommend that the Lord Chancellor, the senior judiciary, and all professional bodies work with law firms to encourage a cultural change within the solicitors’ profession in general, and within law firms in particular, to provide better support for solicitors applying for judicial positions.”

The committee said it saw “no reason why chartered legal executives who demonstrate the requisite attributes are unable to achieve promotion beyond the district bench”.

It also asked the Lord Chancellor and the Lord Chief Justice to consider more ways in which Crown Prosecution Service and government lawyers could gain relevant judicial experience without compromising the public perception of the independence and impartiality of the judiciary.

“This might involve, for example, allowing government lawyers to sit to try cases when they are either geographically removed from their normal place of work or when the subject matter lies outside their usual areas of work.”

Committee chair Baroness Taylor of Bolton said: “The UK has one of the finest judicial systems in the world. However, we have found an alarming number of factors are currently affecting recruitment to the bench, and we are deeply concerned about the impact they are having on the retention of current judges and the attractiveness of the judiciary as a career for potential applicants.

“To maintain our gold standard legal system we need the best and brightest candidates coming forward for judicial appointment.”

    Readers Comments

  • Patrick cavsgoen says:

    If you want to know what’s wrong just look at the JAC and how judges are appointed and promoted

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