Beefing up the bench

The Judicial Appointments Commission (JAC) could be facing a ‘serious shortfall’ in finding 25 candidates for appointment as High Court judges, its chairman said this month. Lord Kakkar told the House of Lords constitution committee that there had been a ‘very worrying’ trend: one High Court post had been left unfilled in 2015 and six seats had remained empty after last year’s appointments round.

Since then, the JAC has been fishing from a broader pool: experience sitting as a part-time judge is no longer required and the Law Society has done a great deal to help solicitors to apply. So I was initially encouraged to hear from Lord Justice Burnett, the JAC’s vice-chairman, that ‘around 120’ applications had been received for the 25 posts — more than twice the number who applied in 2016.

Burnett, in an interview for my Radio 4 programme Law in Action, could not say how good this year’s applicants were. So we need to be cautious. In 2016, when there were 55 applicants for 14 posts, only eight were filled. I expect the 120 or so applicants this year will include many of the 47 who were rejected last year. 

Even if that is not the case, the figures are worrying. No doubt there will be some exceptional candidates who were unwilling or unable to apply last year. They may have been attracted by supportive messages from the lord chancellor and lord chief justice on pay and pensions. But if just one applicant in seven is appointable, 120 applicants will produce only around 17 judges.

And the problem does not stop there. At least 117 circuit judges will be needed — not least because the JAC hopes that the very best of them will be promoted to the High Court. Last year, 55 circuit judges were needed and only 44 could be found. As many as 80 judges are needed for the district bench, many more than have ever been recruited in a single year. Around a quarter of the judiciary needs to be replaced.

Is this, in the words of Mr Justice Haddon-Cave, a ‘very serious recruitment crisis’? According to Burnett, it is too early to say: ‘The problem has been developing observably over the last couple of years – perhaps the straws were in the wind a little before that – but it will be the next year or two that tells us whether what we’re dealing with is a transient problem, capable of swift solution, or something rather deeper.’

And who will have to cope with it? Burnett can tell me precisely nothing about the vacancy for lord chief justice, which makes me think he may throw his hat into the ring. None of the likely candidates meet all the requirements and the post is now wide open. 

Writing here at the beginning of January, I tipped Sir Brian Leveson as favourite in a two-way race with Lady Justice Hallett. But both judges are now 67 and reach retirement age in 2019. They dropped out of the running when the JAC announced that the new chief justice would have to serve for at least four years.

It is clear that this requirement was imposed by the lord chancellor herself: Elizabeth Truss told me she was looking for someone who could lead the system through challenging times while maintaining legal certainty and continuity. As a policy, this is perfectly reasonable; but it would have been kinder if Truss had ruled out a stop-gap appointment earlier.

I think the favourites for chief justice must now be Sir Ernest Ryder, 59, senior president of tribunals, Lady Justice Sharp, 61, vice-president of the Queen’s Bench Division and Lady Justice Macur, 59, deputy senior presiding judge. But I would also shortlist, in order of seniority, Lords Justices Gross, Lloyd Jones, McCombe, Underhill and Bean; Lady Justice King; and Lord Justice Burnett. I don’t know how many of them are interested in the job but I am sure that whoever gets it will be very relieved to have Leveson hearing criminal appeals for the next couple of years.

To a non-lawyer, it might seem strange that so many perfectly adequate lawyers are not considered appointable as judges – particularly in the High Court and above. No doubt Chris Grayling would have taken that view when, as lord chancellor from 2012 to 2015, he cut judges’ pensions, damaging morale and generating the current (or potential) crisis.

But what lawyers prize above all is intellect. The JAC is rightly determined not to reduce its standards: if it cannot fill all the vacant posts, the High Court will have to rely on part-time judges — either practitioners or circuit judges. Some of them may be good, but others will not. So unless those 120 or so applicants include 25 of the cleverest legal minds in the country, either delays will increase or standards will fall.