The Lord Chancellor’s recent decision to lift the prohibition on all holders of judicial office from returning to legal practice has, at a stroke, removed any credit otherwise due for the establishment of the independent Judicial Appointments Commission. Previously, it was a condition of judicial service that candidates accepted that a judicial appointment was intended to last for the remainder of a person’s professional life and that, on termination of the appointment, a former judge would not return to private practice as a barrister or solicitor. The Department for Constitutional Affairs (DCA) has sought to justify the lifting of this prohibition by the need to improve judicial diversity. However, in its consultation paper, published on 12 September, the DCA could only provide two examples of how such diversity could be improved. One related to potential applicants’ concerns that they would be precluded from returning to legal practice should they not succeed in a judicial career. The other example referred to the possibility of younger applicants not wanting to close off mid-career options. Accordingly, the justifications given for improving diversity all related to potential applicants’ career concerns about not progressing through the judicial system and young applicants being unwilling to commit to that system.
The DCA dismissed concerns that former judges returning to private practice would have undue influence as advocates or favour a party with particular legal representatives as having little substance for three reasons. Firstly, that judges were persons of integrity who had taken a judicial oath; secondly, that deputy (part-time) judges are already in a position of being sometimes judge and sometimes advocate; and thirdly, any risk to judicial independence could be dealt with by "introducing conditions and safeguards to deal with the risk of bias".
That judges should have integrity is to be earnestly hoped for but that is not by itself, any more than an oath, an effective guarantee of independence. Further, this does not meet the legitimate concern that a judge, who may only be considering a return to private practice, may be influenced by a desire not to jeopardise his future employment prospects with an interest group he may either represent or may be employed by in the future.
The justification that there are already part-time judges also in private practice, deciding cases involving legal representatives who are either competing advocates or who represent competing or instructing firms, begs the question as to how such a system could be tolerated in any Human Rights Act-compliant judicial system and ought not to have been promoted as a meritorious point.
Finally, the fact that the DCA recognises that conditions and safeguards would be required on account of the risk of bias is perhaps the most revealing testament to the existence of that risk, and the need for the prohibition to be retained, so as to underpin the public’s confidence in an independent judiciary untainted by any actual or possible self-interest.
The DCA’s consultation paper places particular emphasis on what safeguards should be put in place to enable former judges to provide advocacy services. So, for a lay client, the spectre now arises of three tiers of possible legal representation: advocates who were formerly judges, QCs and juniors. Perhaps more risibly, it now raises the prospect of a former judge advocate submitting to a court that his or her decision is either binding or of persuasive authority.
If the DCA genuinely wished to improve diversity then it should increase the number of full-time judges and cease using deputy judges at all levels, other than for limited training purposes. At the same time, it should train and appoint a greater number of younger and diverse applicants who ought to under-stand the reason why they cannot resume private commercial practice. As an essential touchstone for an effective judiciary is public confidence in its independence, potential applicants, who are discouraged from applying on account of concerns about being able to resume private practice, would from the outset have demonstrated their unsuitability for judicial office.
Even as it carries out a consultation exercise, the DCA cannot provide a rational or persuasive justification for lifting the prohibition against the return to private commercial practice. The prohibition is a proportionate requirement for people who have decided to pursue a career that involves them sitting in judgment over fellow citizens and it ought to be retained.
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