A district judge whose application to join the circuit bench was unsuccessful is making a third attempt to challenge the legality of a controversial Judicial Appointments Commission recruitment tool.

Kate Thomas’s first bid to challenge the JAC’s 'statutory consultation' process was rejected last March by Mrs Justice Lang. Nine months later, after hearing submissions from lawyers for Thomas and the JAC during a one-day oral hearing in the High Court, Mr Justice Swift refused permission, saying Thomas’s grounds were not arguable.

‘Statutory consultation’ requires the commission to consult a person who has held the office that candidates are applying for, or someone who has other relevant experience, to ensure that candidates are of good character and have the relevant capability for the role.

Thomas’s lawyers had argued that JAC regulations did not permit an extensive consultation exercise and the procedure undertaken in Thomas’s case was procedurally unfair. However, Swift said statutory consultation was an important part of the selection process and there was nothing in the regulations or Constitutional Reform Act that prevented a consultee from relying on information obtained from others.

Thomas’s lawyers have now applied to the Court of Appeal for permission to appeal Swift’s ruling.

The Law Society has called for statutory consultation to be abolished, arguing that candidates from more diverse backgrounds are less likely to be known to senior judges so less likely to receive positive feedback. Following a review, the JAC revised its approach, including dispensing with statutory consultation in certain circumstances.

 

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