Changes in the way judges are appointed are welcome, but ongoing objective appraisal is needed too, argues Anthony Armitage


The Judicial Appointments Commission (JAC) was recently launched to introduce more transparency into the system. To reinforce this modernisation programme, many solicitors received an invitation from Department for Constitutional Affairs (DCA) minister Harriet Harman MP and Law Society President Fiona Woolf last week to consider applying for a judicial post.



Solicitors should applaud this change of direction, which marks a departure from the traditional 'secret soundings' process. But is this just a superficial change that will manifest itself in greater diversity on the bench without actually breaking the exclusivity of the judicial magic circle?



It is too early to say whether the diversity objective is being met, but there is no evidence so far that any parallel improvements are being pursued in the evaluation of individuals' competencies and in the performance monitoring of judges once appointed. Yet these are essential elements to be found in any robust recruitment process. Perhaps there are lessons to be learned from other tribunals that are structured differently from the courts and operate in different ways from the JAC.



I was recently asked by the JAC to provide a reference on a circuit bench candidate in October, and it struck me that my knowledge and experience of the applicant - gained from my involvement in the recruitment and monitoring of legal assessors serving the General Medical Council and the Nursing and Midwifery Council fitness-to-practise hearings - qualified me extremely well to comment on the competencies of a potential judge.



Non-lawyers chair those medical profession tribunals, and legal assessors advise only on issues of law that arise in the proceedings before them. The tribunal members decide issues of fact. This separation of functions safeguards against the concentration of judicial power in a single person, and it allows for continual performance monitoring by the independent chairman.



Applicants for appointment to the panel of legal assessors must disclose previous complaints, breaches of the law, and disciplinary findings, as well as pass an oral examination. On an ongoing basis, the chairman of every hearing comments on the performance of the legal assessor and this feedback is monitored by our independent agency. If adverse comments from a chairman are sufficiently serious to bring into question the legal assessor's continuing involvement in the role, a verbal warning is issued. A second warning means the assessor is no longer eligible to sit.



My knowledge of the circuit bench applicant, gained from his role as a legal assessor, was therefore recent, substantial and reliable, being based on detailed personal information supplied by the applicant himself at the time of his recruitment, and the independent views of different chairmen on the applicant's performance in several fitness-to-practise hearings.



Surely this presents a compelling argument for the DCA to look again at its changes to the judicial appointments system and consider even more radical reforms.



Past conduct should be taken into account by the JAC in assessing the suitability of a judicial applicant.



So long as courts and tribunals vest absolute judicial power in a legally qualified chairman, a judge's fitness for office cannot easily be challenged and the public's confidence will be diminished.



Anthony Armitage is a director of City-based First Law