Government proposals to increase the diversity of the judiciary and improve career prospects could be counter-productive, the Law Society warned today.
Responding to the Ministry of Justice’s consultation on modernising judicial terms and conditions, Chancery Lane says the proposed terms appear to be ‘more favourable to those who have more secure financial circumstances, who are closer to retirement age or have less care-giving responsibilities’ – exactly the traditional make-up of the judiciary.
Under the proposals, part-time fee-paid judges would have non-renewable fixed terms. The current terms of four or five years are normally renewed automatically.
When the fixed term expires, fee-paid judges who wish to stay in the judiciary would have to seek a salaried post or apply for another position elsewhere.
However, Chancery Lane said that the proposed enforced turnover of part-time roles, lack of permanency and limited full-time opportunities could 'present a significant impediment' to candidates considering a career in the judiciary.
The Society notes that some officeholders choose a part-time role to allow them to remain in legal practice. The new regime would be less flexible for those with childcare commitments or caring responsibilities.
The proposals might also put off younger candidates, who already find it difficult to negotiate time off to undertake a fee-paid role.
The Society says: ‘For younger candidates who are still establishing their position within a firm, an intimation to leave practice may present too much of a gamble with their long-term career prospects as a practitioner. For the firm there is likely to be little commercial incentive to permit a candidate to undertake a part-time role with the underlying prospect of losing them altogether.’
Moving existing fee-paid judges on to new fixed terms could lead to legal challenges, the Society warned.
Removing guaranteed sitting days in conjunction with fixed tenure would make fee-paid positions ‘significantly uncertain and unattractive’ to prospective candidates.
Removing the right to claim travel costs, in line with salaried officeholders, overlooks the fact that several fee-paid judges do not have a ‘primary base’, the Society says. For instance, Mental Health Tribunal judges sit at more than 900 different hospital and trust venues.
The Society also warned that any discrepancies between the devolved Mental Health Review Tribunal for Wales (which sits outside HM Courts & Tribunals Service’s remit but under the Ministry of Justice for judicial appointments) and any reforms applicable to the Mental Health Tribunal will be open to legal challenge.
The review tribunal also operates entirely on fee-paid judicial resources, with no salaried positions for candidates to progress into.
However the Society agrees with the government’s stated desire to attract candidates from ‘different walks of the legal profession’. Solicitors make up only 28% of the judiciary.
Chancery Lane also suggests that the ministry consider removing the ban on judges returning to practice after they resign or retire.
In its response, the Bar Council said the changes, which might be ‘unlawful’, would ‘undoubtedly create ill feeling’ and demotivate much of the fee-paid judiciary which could cause repetitional damage.
'Fee-paid judges applied for jobs on the expectation that they would remain in post unless they conduct fell short of expected standards,’ the council said.
If introduced, the proposals would lead, in due course, to a large volume of fee-paid judicial posts needing to be filled.
‘This would almost certainly lead to a marked increase in the costs and administration of recruitment and training, and to an exodus of experienced fee-paid judges out of the judiciary,’ it added.
Meanwhile, the Gazette has learned that the employment tribunal will deliver its verdict on the pensions dispute between judges and the lord chancellor in the new year.