Missing opportunities

Competitions for hundreds of judicial posts, both full-time and part-time, are being run over the next few months as courts and tribunals try to plug the gaps that are leaving judges swamped with work and threatening to undermine the judiciary’s worldwide reputation.

The Judicial Appointments Commission (JAC) is currently running its biggest-ever exercise for part-time, fee-paid deputy district judges (DDJs). The competition to fill 303 vacancies is due to be completed by the end of February 2019.

The next recorder exercise is due to be launched tomorrow (19 June) with 150 part-time vacancies, while 54 candidates are urgently needed to fill salaried employment tribunal judge roles as the tribunal struggles to cope with the surge in claims since fees were ruled unlawful by the Supreme Court.

The growing phenomenon of judges resigning or taking early retirement, alongside those reaching the mandatory retirement age of 70, means the demand for people to fill key salaried roles is exceeding the pool of strong candidates.

In the 2017 High Court competition, a third of the 25 vacancies remained unfilled. There was a shortfall of 12 circuit judges following the largest-ever competition for 116 roles; and, for the first time in recent years, there was also a shortfall in suitable candidates for district judge roles.

Lord Chief Justice Lord Burnett spelt out the risks to the court system when he gave evidence to the House of Lords Constitution Committee in May. He blamed pay and pensions, ever increasing workloads, deteriorating working conditions and social media abuse for the high turnover and recruitment problems. The Appeal and High Court would ‘struggle’ to cope, he said, without retired judges sitting part-time.

He said the government recognised the impact these difficulties were causing and had made a commitment to ‘engage seriously’ with the recommendations of the Senior Salaries Review Body’s (SSRB) major review of judicial pay.

However, the SSRB timetable has already slipped to the autumn, while the Ministry of Justice (MoJ) is refusing to back down over changes to judicial pension arrangements, taking its fight to the Court of Appeal in early November.

 Why be a judge?

Against that bleak backdrop, the question for many solicitors is – why would I want to be a judge? Particularly when some firms consider a part-time judicial role to be career suicide. But, talk to those who have pursued the option and – however demoralised they may feel about the application process and promotion chances – they light up when they talk about the work itself.

There are initiatives being put in place to support applications from under-represented groups. The Law Society is developing the Solicitors Judicial Pathway while the Judicial Diversity Forum, which includes senior judges, the MoJ, JAC and professional bodies, has announced plans for an online Pre-Application Judicial Education (PAJE) programme to start next year.

Lady Justice Hallett chairs the Judicial Diversity Committee of the Judges’ Council. She says PAJE will train practitioners in ‘judge craft’ before they even look at the application form. Once they apply, under-represented candidates hoping to become deputy High Court and High Court judges can then go on the workshops provided by the judiciary. These will help them use the skills they have developed through PAJE to demonstrate that they have what it takes.

So, what do the latest JAC statistics say about the highly competitive recruitment process? First, it urges ‘strong caution’ in how the figures are interpreted.

There were 4,772 applications for 24 competitions for legal roles between April 2017 and March 2018 (excluding senior judicial exercises), which resulted in 493 recommendations for appointment.

Black, Asian and minority ethnic (BAME) candidates constituted 19% of all applicants (906). Of those candidates, 12% (144) short-listed, but 9% (44) received recommendations for appointment – a lower rate than white candidates.

Women accounted for 43% of applicants and 40% of both those short-listed and recommended for immediate appointment.

Social mobility details were recorded for the first time. Those attending fee-paying schools accounted for 35% of those recommended for judicial appointment, although only about 7% of the British public is privately educated. While two-thirds of district judges went to state schools, more than half of those recommended at High Court judge level went to private schools.

Solicitors accounted for 36% of all applicants, and 25% of those short-listed. Solicitors made up 21% of those recommended for appointment, compared with 59% of the barrister candidates who were recommended for appointment. (The remaining 20% did not give their profession, or stated it was another judicial role.)

Solicitors did well at the more junior levels – accounting for 47% of those recommended for appointment as district judges (civil); 45% of district judges in the magistrates’ court; and 48% of first-tier tribunal salaried judges. But their representation, along with that of BAME and women candidates, continues to drop as the seniority of the exercise increases.

Two former solicitors did make it tothe High Court bench last year – taking the tally to six since 1993. But both were already in full-time judicial roles when they were appointed.

DDJ Peter Causton, who is standing for the Law Society Council as civil litigation member, says ‘male barristers clearly have a disproportionate advantage in their applications, even with the equal merit provision being exercised in favour of women on three occasions’.

Tim Smith is a partner with Bryan Cave Leighton Paisner and a member of a working party on judicial appointments for Justice – the law reform and human rights organisation. He first applied about eight years ago and made several applications for a fee-paid role, including recorder and upper tribunal, before being appointed five years ago as a first-tier tribunal judge in the Social Entitlement Chamber. He has sat 85 times since then. He has subsequently applied for other fee-paid roles, including deputy High Court judge, without success.

Smith says his firm has been supportive and he has seen feedback from the JAC improve. After his initial deputy High Court application, he was told his telephone interview was good, but it was felt his application form was not strong enough for his application to progress.

‘So I beefed that up, but the next time I didn’t get through the paper sift,’ he says. ‘I was also disappointed that my tribunal experience didn’t appear to add weight to my applications, given some of those appointed didn’t have any judicial experience.’

Difficulty defining ‘merit’

While it is ‘indisputable’ that the JAC should appoint on merit, he argues that, without an accepted description of what ‘merit’ looks like, that commitment is meaningless.

He believes the JAC should be ‘more courageous’ in its recommendations by focusing more on potential rather than demonstrable achievements.

‘Suppose you have two people who both performed equally well in the role play or telephone interview,’ he says. ‘One is a regular advocate in the High Court and the other is an M&A practitioner who doesn’t go to court, but is very experienced in managing projects and people. Both show lots of the skills expected of a judge. But which one has the greater potential? I am not sure the system is set up to reward potential.’

Cordella Bart-Stewart is an immigration and family law specialist, and a director of the Black Solicitors Network. She was appointed as a fee-paid employment tribunal judge 18 years ago on her first try and encourages others to apply because the work is rewarding. But her experience of seeking a salaried appointment was ‘very negative and I complained about the process. There is a lot of hand-wringing about diversity, but I don’t think any real steps have been made to appoint other than in the existing image of a judge’.

Bart-Stewart argues: ‘Taking 10 cases to the Court of Appeal doesn’t make you a better lawyer than practitioners in the high street who run a successful practice, employ people and deal daily with difficult challenges facing clients and get results for them.’

Jonathan James, chair of the 125-member United Kingdom Association of Fee Paid Judges, says the advent of alternative business structures (ABS) has added to the difficulties for solicitors whose employers see releasing them for judicial duties as eating into their profits.

Association members in both ABS and partnerships have lost their jobs, found their promotion blocked or the number of days they can sit restricted to the minimum.

There is some evidence that opportunities for promotion are opening up, with the majority of circuit judge appointments coming from the district bench, where solicitor representation is strong. Whether this leads to real change, he says, depends on whether those former district judges go on to be promoted to the High Court bench.

Clifford Chance partner Simon Davis, who will become Law Society president in 2019, says both he and the incoming president Christina Blacklaws will put solicitor-judges high on their agenda. While he has no desire to become a judge, he says ‘there is far too much talk about how we can attract more applicants and not enough on why those who do apply don’t get through’.

The Society of Asian Lawyers has also been trying to address the under-representation of those with BAME backgrounds, who account for just 7% of judges, by holding events to inspire members to apply. President Ranjit Sond says BAME candidates account for 10% of those appointed before they are 40 and for 14% of tribunal judges. ‘These roles can be very specialised, so we need to find out why the figures for the courts are lower when the ability is clearly there,’ he says.

‘We need to get to the bottom of the disparity in appointments,’ agrees Richard Miller, Law Society head of justice. ‘Is this down to inherent bias in the system or the quality of the applications, because some don’t have the same contacts or background or don’t take the right approach in showing their skills?’

Richard Jarvis, JAC chief executive, says the commission has done a ‘huge amount’ to ensure selection is fair by getting external validation and rigorously testing every tool used in the process.

‘An advisory group of professionals and judges reviews all selection materials – including role plays, to ensure that they don’t adversely affect equality or diversity or inadvertently advantage candidates from a particular practice area or jurisdiction,’ he says.

‘None of our selection tools test for advocacy, and considerable stress and effort is put into designing tools that can identify transferable skills from a wide range of professional backgrounds.’

The task is challenging. For the recorder roles, there were 2,500 candidates for 150 posts, which Jarvis says ‘has to involve comparative judgements so you can identify the top 150 candidates’.

In a bid to get a deeper understanding of what is going on, Jarvis says JAC commissioned a complex statistical analysis of each stage of the process to see if there are any barriers to the progression of under-represented groups. The results are due this summer.

Hallett acknowledges that ‘if you are a highly successful solicitor and put yourself forward, being rejected feels like a slap in the face and it takes quite a lot to dust yourself off and apply again. But look on it as a learning experience – was it because my form wasn’t very good or because I didn’t interview well? Next time I will do better.’

Difficulty defining ‘merit’

Rights group Justice and Labour MP David Lammy, who produced the highly regarded report on tackling injustice, have called for ‘measurable targets with teeth’. But Hallett argues significant progress is being made, and targets or quotas will not help.

‘I want to see more women, BAME and socially mobile applicants become judges, but I would never express that as a target because I don’t feel sufficiently in control of all the moving parts and it just sets you up to fail,’ she says. ‘My target is to stop needing inspirational role models, because these appointments have become routine.’

Mrs Justice Philippa Whipple trained at Freshfields and worked in its tax department for four years before retraining as a barrister and a part-time judge. She was appointed to the High Court in 2014. ‘There is a German word – quotenfrau – for a person given a post to fulfil a quota,’ she says. ‘I wouldn’t want to be that person.’

Andrea Coomber, director of Justice, says it has also repeatedly argued that there should be a clearer internal career path so solicitors appointed to junior roles have a better chance of promotion.

In May, former Law Society president Phillip Sycamore was appointed deputy vice-president of the Unified Tribunals. Originally a provincial high street solicitor, he was appointed as a recorder in 1999 and circuit judge in 2001, becoming the liaison judge for the Mental Health Review Tribunal in 2002. He is also authorised to sit as a High Court Judge and is a senior judicial appointments commissioner.

He points out that it was his solicitor background that made him attractive for the initial liaison judge appointment because it was an organisational role.

He says practitioners should not limit themselves to the more obvious route of recorder, as sitting as a tribunal judge can be less disruptive to practice and progression to court roles is ‘quite healthy’.

What stands out is the passion which practitioners bring to their judicial roles.

Hallett says the recruitment crisis must not be underestimated if the courts are to maintain their place in the world: ‘It would just be such a disaster if we lost it and it wouldn’t take that much money in government terms to put things right.

‘But at the same time, we also mustn’t undersell the job. It is endlessly stimulating.’

Grania Langdon-Down is a freelance journalist