Arrangements for appointing senior judges in England and Wales are approaching a crisis. But you would have no idea of that from the the self-congratulatory news release put out by the Judicial Appointments Commission (JAC) to mark its 10th anniversary this week.
The Ministry of Justice has already disclosed that it is seeking an above-inflation 3% pay rise for high court judges. Its explanation for taking such desperate measures is that there has been an “unusual level of early retirements” in the senior judiciary. Even more alarming, the JAC was unable to find a suitable candidate last year for a vacancy in the high court family division.
Things are about to get much worse. Half the 12 judges of the UK supreme court reach mandatory retirement age in the next three years. Three more will have to go by 2020, at which point there will be no judge from England and Wales on the UK’s highest court with more than three years’ experience of serving there.
Lord Dyson, the most senior judge in England and Wales specialising in civil cases, retires this summer. Lord Thomas of Cwmgiedd, the lord chief justice, retires next year. And Sir James Munby, the senior family judge in England and Wales, retires in 2018.
These vacancies will inevitably be filled by judges from the court of appeal. Other appeal judges will be reaching retirement age in the next couple of years. And we can expect to see more judges hanging up their wigs early. Judges will be promoted from the high court to take their place.
That means there will be an extraordinarily large number of almost simultaneous high court vacancies shortly — perhaps as many as 15. Senior judges believe there is little chance of filling them unless radical measures are taken.
So the much-criticised “tap-on-the shoulder” method of recruitment — which the JAC was set up to replace — has been discreetly reinstated. What’s different is that it’s senior judges who are doing the tapping rather than the lord chancellor — and it’s now much more like a shove in the back. We can expect to see a number of lawyers who’ve either spurned a judicial appointment or been spurned by a misconceived appointments system sitting part-time in the coming months and being fast-tracked into the high court.
But all this depends on the JAC, whose chair, Christopher Stephens, retires at the end of this week. He will not be replaced before the autumn even though the advertisement for his successor, placed online last Thursday, specifies a closing date next week.
This ridiculously short period suggests a state of panic at the MoJ, which is responsible for appointing the appointer. We can infer from the fact that Stephens’s appointment was extended by two months that previous attempts to find his replacement have failed.
No surprise there. Unlike all the job advertisements that the JAC itself makes, this one does not disclose a salary. When the MoJ says “remuneration will be commensurate with the position” it means “the pay will be as little as we can get away with”. Otherwise, why not say what it is?
This is deeply alarming. It suggests that the MoJ is willing to appoint another lightweight figure. Stephens was a well-meaning and likeable figure at the JAC but his experience as a personnel director in industry hardly gave him the authority that the job demands. He was unable to prevent Chris Grayling, the former lord chancellor, slashing the judges’ pension packages and thus precipitating the present recruitment crisis. From his press release, Stephens doesn’t even seem to think there is a crisis.
By law, his successor cannot be anyone who has ever practised as a lawyer. What’s needed for the part-time post is a very senior member of another profession — or perhaps a retired military officer. You need someone who can stand up to the senior judges when necessary while recognising that they will know the potential candidates much better than any non-lawyer can. You need somebody who can command respect.
But the best people don’t come cheap. Either they need a decent salary to live on or they are not prepared to demean themselves by taking on a low-paid job.
The new chair of the JAC will be able to influence the recruitment of a generation of judges. If the wrong people are selected and appointed, we risk undermining the only branch of governance in which the public still has some measure of confidence.
Michael Gove, who succeeded Grayling as justice secretary, cannot undo the long-term damage his predecessor has done to the judiciary as easily as he has been able to reverse several of Grayling’s other follies. He needs to secure a first-rate person to rescue the judiciary from shortsighted interference. That means taking the time to find someone good — and being prepared to pay the rate for the job.