Mystery surrounding a controversial recruitment tool deployed by the Judicial Appointments Commission is extremely unhelpful, the master of the rolls has said in a long-running battle between a judge and the Judicial Appointments Commission.
Sir Geoffrey Vos made his observation about the ‘statutory consultation’ process on the second day of a Court of Appeal hearing in the row between district judge Kate Thomas and the appointments body. Thomas is challenging the legality of the process after receiving ‘mutually contradictory’ letters about why her application to the circuit bench was unsuccessful.
Sir James Eadie KC, for the commission, told the court on Friday that JAC decision-makers must have the ‘fullest and frankest’ information to make a judgement and the Constitutional Reform Act 2005 protected the confidentiality of statutory consultation responses. The commission rejected the accusation that statutory consultation was ‘secret soundings by the back door’.
However, the master of the rolls said solicitors and barristers should know who will be asked to provide a consultation response and enter a recruitment competition ‘with open eyes’.
‘If the process has a secret element by statute, [candidates] must know what’s going to happen and prepare for it,’ Vos said. If a statutory consultee made a ‘very remarkable’ allegation which drew a negative inference, the allegation should be put to the candidate, he added. ‘Mystery about this process is extremely unhelpful.’
Meanwhile, immigration visa specialist 4A Law, which sought guidance from the court on the circumstances in which the JAC should disclose adverse statutory consultation responses to candidates, was given permission to intervene.
Arfan Khan, for 4A Law, told the court the ‘high’ demand for procedural fairness was not met when the JAC’s selection and character committee overturned a panel recommendation to appoint Thomas as a circuit judge. In written submissions, 4A Law said adverse consultations from undisclosed sources were used by the committee without putting them to Thomas and the Thameside duty required public authorities such as the JAC to conduct reasonable inquiries and disclose the substance of an adverse decision.
At the end of the two-day hearing, Sir Geoffrey Vos, Lord Justice Underhill and Lady Justice Nicola Davies reserved judgment.
Ben Collins KC and Nicola Newbegin appeared for Kate Thomas; Sir James Eadie KC, Robert Moretto and Natasha Simonsen for the JAC. Arfan Khan and Tahir Ashraf represented 4A Law.
