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The link between these constitutional shenanigans and the decline in judicial morale is a simple one. As Lord Hoffmann has observed, that link exemplifies the unintended consequences which can be brought about by the application of approved political theories to effect constitutional change. Nobody within shouting distance of the seat of power (which about describes the Lord Chief Justice’s position) is standing up for the judges any more. There is no effective departmental head to scotch a tide of civil service-driven corrosion of the conditions under which judges work. So it is not surprising that their quality of life has deteriorated sufficiently for many to wonder why they should carry on doing the job. Ultimately, the question is not whether this attitude is reasonable. One can argue about whether the judges should be entitled to stay in (often far from palatial) lodgings while they are working long hours trying important cases dozens or hundreds of miles from home. It is easy to scoff at the supposed inadequacy of judges’ pension arrangements, given that the High Court salary is currently £180,000. This is not the point. Judges always used to be willing to accept appointment, and to do so at the acme of their professional careers and the peak of their earnings, a financial sacrifice which brought lustre to the system and the appointee alike. There is no reason why they would not go on being willing, if the conditions were tolerable, if they were accorded respect and independence, and if they were valued for doing selfless and demanding work of public importance. But they aren’t.

In the old days, judges were appointed by the Lord Chancellor, after he had consulted other judges and senior lawyers. The first that a future judge knew of his or her fate was on receipt of a telephone call from the Lord Chancellor himself, issuing a summons to a meeting in the House of Lords, at which he would then issue a face-to-face invitation. The metaphorical hand on the shoulder and the flattering attention of this demigod nearly always did the trick. Those who were called submitted to being chosen.

To recall the old selection process is not to succumb to a misty-eyed appraisal of the presumed perfection of judges of previous eras: one need only read Richard Davenport-Hines’ account in An English Affair of Lord Parker’s behaviour in connection with the Stephen Ward trial, and of the revered Lord Denning’s prurience and naïveté in the Profumo inquiry, to recognise that there was no invariable pre-lapsarian standard from which current judges must be taken to have departed. But the widespread view in the profession is that, whatever its theoretical demerits, the old system worked.

It is all different now. For a start, individuals must apply to the JAC, if they think that the time has come to put themselves forward for judicial office. The process of application is a mixture of the banal and the distasteful. The guidance on how to apply promulgated by the JAC advises that “it can take several hours to complete a judicial application, particularly if you have never applied before, so you will need to leave plenty of time.” Candidates need to demonstrate their own competencies in numerous areas, providing “specific examples” by way of justification. They have to follow the SOAR model, explaining the Situation facing them, their Objective, the Action they took and the positive Result.

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BAH
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 http://thejusticegap.com/2016/04/without-recompense-wrongfully-convicted... 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.

SGM
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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