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As a consequence of recent constitutional change, especially the abolition in all but name of the office of Lord Chancellor in 2005, our judges are an endangered species. Any threat to the quality of judges is serious and needs, more than it has been, to be a matter of public debate. The focus is on High Court and Court of Appeal judges who, since few cases progress to the Supreme Court, are responsible for applying and where necessary making most of the law which affects us all. (This is not to imply that lower tier judges are immune to the difficulties their senior colleagues face; far from it.)

Why are judges an endangered species? Not (despite current suggestions to the contrary) because of the unpleasantly populist attacks to which they are occasionally subject: judges are used to trying controversial cases, and they bear occasional gouts of public anger with reasonable equanimity. No, the judiciary is in trouble because for the last decade it has been inadequately defended and represented where it ought to be — at the heart of government — and it has been subjected to increasingly unfavourable and unattractive conditions of entry, work and pay. The result is that fewer good candidates apply to become judges, and those that are appointed are increasingly overworked, demoralised and prone to early retirement. This state of affairs naturally becomes known to barristers, and so fewer apply for promotion. One statistic illustrates the point: a recent recruitment competition held by the Judicial Appointments Commission (JAC) — of which more later — advertised up to 15 High Court vacancies. Only eight places were filled. This was a direct function of the paltry number of candidates who applied. The Family Division is struggling to find any new judges to sit. More and more cases are tried by deputy judges (which is not what litigants expect), so the JAC has had to launch a fresh recruitment campaign for deputies (couched in unseductive albeit peremptory terms).

These facts represent a fundamental change in and challenge to judicial recruitment. Until recently, a place on the High Court bench was thought almost universally among barristers to be the pinnacle of their career, carrying with it not only the coveted knighthood (this at least remains) but an almost automatic gain in respect and status, to compensate for a significant diminution in income. New appointments were envied and congratulated on having achieved an acknowledged career goal. As a result, nearly everyone was prepared to take the shilling. Not any longer.

To understand the background to this trend, one needs to start with the powers of the Lord Chancellor prior to 2005. He was almost the greatest man in the land. In formal precedence standing just below the royal family, between the Archbishops of Canterbury and York and above the Prime Minister, he was by right the presiding officer of the House of Lords, a senior member of the Cabinet, a departmental head (of the Lord Chancellor’s Department, which dwindled successively between 2003 and 2005 into the Department of Constitutional Affairs and then the Ministry of Justice), the presiding Lord of Appeal and President of the Courts of England and Wales. (One can argue the pros and cons of this concentration of powers in one person, although allegations of practical conflict or impropriety have in modern times been non-existent. As Lord Hoffmann has written in this context, one can apply too much “fundamentalist rigour” in relation to the doctrine of separation of powers.)

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December 20th, 2016
2:12 PM
Paul Leslie's posting is wholly inappropriate. His complaints arise from matters nothing to do with what Jonathan Gaisman has so pertinently written about and he does not begin to justify his comment that "most of this article is utter nonsense and even dishonest in parts". That is unsurprising: the article is on the ball and palpably honest.

Paul Leslie
December 15th, 2016
2:12 PM
Unlike most Standpoint articles this piece is not only utter nonsense but also dishonest in parts. "Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are" - what vigorous defence? With the full complicity of many senior and more junior judges - sometimes even without recourse to legislation which tramples the rights of the accused - more and more cases are coming to court where there is no proof even that a crime has been committed Especially since the deplorably one-sided report by Robin Auld, the only defence for the unjustly accused against prosecution is not the lack of solid evidence but a belief by the DPP that there is not a more than 50% possibility of conviction. As far as victims of miscarriages of justice are concerned they have to jump through expensive hoops and demonstrate their innocence "beyond reasonable doubt". Even when, as in the case of Victor Nealon, this can be conclusively demonstrated - including by invoking the proof (I am aware that absence of evidence is not always proof of innocence, but not in this case) that his DNA was completely absent, whether on the victim's clothing or elsewhere at the scene of the crime - there are any number of highly placed judicial functionaries to bring forward specious arguments to deny justice to the wrongfully convicted. See and other relevant articles.

Paul Leslie
December 15th, 2016
2:12 PM
Unusually for a Standpoint article most of this article is utter nonsense and even dishonest in parts. "Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are." - and the complicity of so many senior and more junior judges in the serious erosion of the fundamental principle of the presumption of innocence and the contemptible curtailing of compensation for the wrongly convicted? The wrongly convicted have to jump through expensive hoops to have a chance of being compensated and to demonstrate that they are innocent "beyond reasonable doubt". Take, for example, the case of Victor Nealon case where the absence of his DNA at the scene of the crime demonstrates conclusively that he could not have been guilty the high ranking judicial functionaries involved found a way to deny him any form of retroactive justice (I am aware that absence of evidence is not always a proof of innocence, but not in the case of this poor man who served seventeen years in prison following a deplorable miscarriage of justice). In a country where the judiciary is attached to the right of a fair trial someone who is acquitted or wrongly convicted and only belatedly let out of prison should not pay for justice to be properly served.

Angela Brown
November 25th, 2016
7:11 PM
The selection process for judges seems to be built around a framework of desirable competencies and behaviours, as frequently used by HR professionals. A much better indicator of capability and potential is performance in relevant current and previous roles, when available, which it surely is in the case of recruitment to the judiciary.

November 23rd, 2016
2:11 PM
I entirely agree and particularly enjoyed the excoriation of Falconer. It seems a shame to bring the Article 50 case into it though. However unfair some of the press criticism may be it is not a case of the courts stepping in to restrain a tyrannical legislative majority or overbearing executive, but of the courts being exploited by a disaffected minority to try to frustrate the result of a referendum. Perhaps it was the right decision from a legal point of view but lawyers should not be surprised that non-lawyers look askance at the outcome.

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