Why is it so difficult for solicitors to become high court judges? Rachel Rothwell profiles two solicitors who have attained the giddy heights and asks them about the obstacles they had to overcome

As High Court judges go, Sir Henry Hodge and Sir Lawrence Collins seem to fit the bill pretty well. They are both white, they are both men, and they have both reached a certain age. So far, so fitting the mould. But there is one thing – not discernible to the naked eye – that sets them apart from the rest: they are solicitors.


They are the only two who have followed Sir Michael Sachs from the larger branch of the profession and reached the High Court bench. Sir Michael died last October, aged 71, ten years after his appointment in the Queen’s Bench Division. But with the planned reform of the judicial appointments system, it could be that more will follow.


Holding court: solicitors need more intense advocacy experience So what is it like being a solicitor High Court judge – apart from lonely? Sir Henry has been in the job, in the Queen’s Bench Division, since last August. Sitting in his rooms in the Royal Courts of Justice building in London, with a hefty oak desk and ornate stone window, he seems to be enjoying himself. ‘I call this room the dungeon,’ he smiles, ‘because it’s down in the basement, miles from anybody else. There is a hierarchy of judges, and I have to wait until I’ve been here a bit longer to get a better room. But it’s a real privilege to be here.’

That there are so few solicitors in Sir Henry’s position begs for an explanation. He says: ‘Solicitors are clearly at a disadvantage in terms of making themselves known to people whose opinions are carefully considered, because they do not appear in court.’


But that is only half of the problem. He warns: ‘There is pressure from law firms not to go into the judiciary, and it is getting worse. The bottom line is very important to firms. If people who aren’t the main owners become judges, there is a question mark over whether they are committed to the firm, and whether they will carry on meeting their targets. The better they are at billing, the more the firm wants them to do that, rather than judicial work. You see that a lot in the big City firms, where there are very few part-time judges.’


He adds: ‘I was lucky enough to be one of the principals of my firm, and so I never had any problems taking time away to do judicial work, and in fact I was always one of the top-three billers despite being a judge as well.’


That firm is the legal aid practice Hodge Jones & Allen in north London – founded by a youthful and idealistic Sir Henry in the 1970s together with two friends who were equally determined to fight for civil liberties and justice. He was appointed a recorder in 1993, rising to circuit judge six years later. In 2001, he became chief immigration adjudicator, and this April he will leave the High Court bench for three years to take on the role of president of the Asylum and Immigration Tribunal. Not bad for a mere solicitor. A staunch defender of the rights of the disadvantaged, he is a former chairman of the National Council for Civil Liberties and former deputy director of the Child Poverty Action Group. He received an OBE for services to the Social Security Advisory committee. A one-time Law Society Deputy Vice-President, he has also been dubbed one of ‘Tony’s cronies’, being married to children minister Margaret Hodge.


It is a long time since Sir Henry was in practice, but he has some sympathy for those solicitors still doing publicly funded work today. He says: ‘It is harder now to be a legal aid lawyer, with the requirements of the contracting system much more complex than they used to be. But then, so are the requirements in other areas, such as for corporate clients. The criminal legal aid budget dominating at the expense of civil legal aid is a serious problem, but it is only in recent years that the cash has been limited. And the Legal Services Commission’s tougher regime has led to a big improvement in the quality of work done by asylum and immigration lawyers.’


A few flights up and in a different part of the building – and, it has to be said, much larger rooms – Sir Lawrence Collins, resides. He is pleased to see another solicitor in the High Court ranks, and would welcome more – indeed he takes on a City trainee each year to shadow him and get a rare insight into the day-to-day role of a senior judge.


But he is not optimistic that solicitors will be flooding into the High Court ranks any time soon. He says: ‘It is not really necessary to have advocacy experience to be a judge – in fact, I am of the view that you can do anything with training – but [the need for it] is the prevailing view, and it will die very hard. It disadvantages solicitors because many of the best, even litigation solicitors, do very little advocacy, and not on a day-to-day basis.


‘Speaking from my own experience in the City, most litigation is very substantial, and so the opportunities for solicitors to do advocacy is very limited [because larger litigation is given to barristers]. In the High Court, there are very few solicitor-advocates.’


He goes on: ‘But there is a difference in the quality of barristers and solicitors appearing in court – not so much in the advocacy, in terms of giving speeches, but the specialist knowledge and court craft that comes with doing things on a day-to-day basis. I would like to see solicitors having more intense advocacy experience.’


Sir Lawrence is a former City litigator himself, having trained at Herbert Smith and remained there throughout his career as a solicitor in international law. He left the firm, where he headed the highly regarded litigation practice, to join the High Court’s Chancery Division in 2000, after becoming a deputy High Court judge in 1997. He already has ten thick lever-arch files containing his judgments, neatly filed in his rooms.


One that had solicitors gripped last June was his decision to ban City firm Freshfields Bruckhaus Deringer from acting for entrepreneur Philip Green against the firm’s former client Marks & Spencer – a move that had many City practices taking a nervous look at their own conflicts policies. Does the experience of being a solicitor bring any special understanding of business to the bench?


He says: ‘Solicitors can bring great management skills, experience of commercial life and reality, and at least equal judgement of people to [that of] barristers.’


Sir Henry goes further. He asserts: ‘I personally bring to the job as wide an experience of the socially disadvantaged of any of my colleagues, and more than most, and that adds to the dimensions at the High Court. There are many solicitors whose daily working lives mean that they see a wider cross-section of lives than most barristers.


‘If you have been a partner in any sizeable firm, you know about business and human resources issues, and straightforward employment issues. You get familiar with something more than just making a living.’


Sir Henry maintains that if solicitors are at a disadvantage because of the emphasis on advocacy in judicial appointments, they must shoulder some of the responsibility for that. He says: ‘When I was at Edmonton Crown Court, I was always disappointed that solicitors did not do more advocacy. If solicitors want some of the advantages that doing lots of advocacy is supposed to bring, they only have themselves to blame for not using the rights of audience they have been given. They can earn more in the office than in the courtroom, but they pay the price.’


While Sir Lawrence declines to be drawn on the issue, Sir Henry supports the current reform of the judicial selection process to encourage people from a more diverse background to join the bench. He says: ‘There was no interview for my position as High Court judge, just secret soundings and references. But there ought to be an interview, as for any other job. The old tap-on-the-shoulder system is not the way forward.


‘Most members of the judiciary have come to accept that it would be good to expand the range of experience, provided you choose the best person for the job. The problem is it is a lot easier to show you are the best person when you are appearing in front of senior judges all day and at the Inns of Court.’


 Despite being solicitors, both judges were invited to join Inns of Court on joining the bench: Sir Lawrence picked Inner Temple, while Sir Henry chose Gray’s Inn. Sir Henry explains: ‘As a solicitor, I didn’t really have many friends here when I arrived – most new judges already know people from their Inns or the other side of cases. The judges have tea together once a fortnight in the members’ bar, but there is very little meeting of colleagues and judges do not really wander into each others’ rooms. Socialising is mainly done at the Inns – after all, as a High Court judge, you can’t just go to the pub.’