EXCLUSIVE: Judges reveal 'cancer of secret surroundings'

“We’re still appointed by a nod and a wink” say judges.

The Judicial Appointments Commission (JAC) is institutionally discriminatory and operates a “cancer of secret soundings”, the Justice Support Network (JSN), a group set up to help judges, has claimed.

In a letter to the justice select committee, seen by Eastern Eye, the JSN sets out its case for “a full investigation” into the appointments process.

“We understand that this cancer of secret soundings: sifting for attitudes, allegiances, composed of gossip and never revealed to the candidate has crept in and proliferated within the system, being used at a far earlier stage in the process than before. It creates bias and undermines the apparent objectivity of scoring from other subjective panel assessment and other information sources,” wrote the chair and founder of the JSN, Judge Kaly Kaul, on behalf of the network.

“This has taken us back to the bad old days. The nod and a wink still obtain, but now dressed up in the clothing of scoring and data.”

Eastern Eye campaign

This newspaper has been campaigning for more than a year for the select committee to open an investigation. The panel finally held a hearing last month (29 June) after several unnamed judges wrote to the committee following an Eastern Eye exposé.

One south Asian judge said, “Can you imagine in 21st century Britain, we have this type of judicial appointment system? It is scandalous.”

The JSN said it was dissatisfied with the answers to MPs’ questions by the chair of the JAC, Lord Kakkar, and his colleagues.

“Copious data did not supply answers,” said the letter. “There was a lack of urgency and an impression that this issue had been asleep until very recent press comment.

“Members noted that co-working on diversity between the lord chief justice and the JAC had only recently revived and was proceeding without urgency and with little direction.”

Judges have told Eastern Eye that they are on anti-depressants, and some have contemplated suicide because of the culture of fear, bullying, sexism and racism.

Unwelcome

One south Asian judge said, “We must not bring the judiciary into disrepute.

“I can say that the way I’ve been treated, I not only feel unwelcome in the judiciary, but I no longer feel welcome in my own country.

“I love this country, I serve this country, but I’m being made to feel as if I have achieved nothing.”

One Asian judge said 'not only do I feel unwelcome in the judiciary, but I no longer feel welcome in my own country'.

The JSN wrote to the Equality and Human Rights Commission (EHRC) asking it to investigate the appointments process and structural, systemic and institutional bullying, sexism and racism allegations.

But the EHRC refused because it said it did not have the resources.

“On the back foot, the impression given by Lord Kakkar and Dr [Richard] Jarvis was that the statutory consultation – or ‘secret soundings’– was the only thing wrong with the appointments system,” the letter continued.

“As the EHRC submission makes clear, it is not: the whole of the appointments system is flawed, and secret soundings are only a part of that system – a system which the JSN maintains is rotten to the core, and fundamental reform must follow, with new personnel, and the involvement of the judiciary reduced substantially.”

The “Diversity of the judiciary 2020 statistics report” claimed that “overall, compared to the pool of eligible candidates, success rates for BAME candidates were an estimated 17 per cent lower than for white candidates (not statistically significant)”.

Data confusion?

However, analysis by Eastern Eye revealed that in 2020, if you were a white candidate, you were almost 2.5 times more likely to be “recommended for immediate appointment” than if you were not white.

We asked the JAC to respond to claims made by the JSN, and why it highlighted only the achievements, rather than concerns of non-white judges.

Its response did not answer our questions.

“The JAC’s statistics are prepared and analysed by government statisticians, under the code of practice for statistics,” wrote a spokesperson.

“This morning the Judicial Diversity Forum (JDF), which is chaired by the JAC and includes the lord chancellor, the lord chief justice, chair of the Bar Council, the chair of the Law Society, the chair of the Chartered Institute of Legal Executives and the chair of the Legal Service Board, has published a combined statistical report.

“The report provides a picture not only of the diversity of today’s judiciary, but also of the process by which judges are recruited and the diversity of the pool from which much of that judiciary is drawn – the legal professions.

“Having in-depth data in one place enables the JDF to better understand the challenges of increasing diversity in the judiciary and take a collective approach to making improvements at all stages.”

Investigation needed

The JSN asked the select committee for four things.

· An independent enquiry into secret soundings and judicial appointments.

· That this should be chaired by an academic.

· That the select committee should take the lead on the enquiry.

· Judges be allowed to give evidence to the enquiry in secret.

“Statutory consultation – the old “secret soundings” is not the only part of the appointments process which is flawed and taints the whole,” wrote Kaul on behalf of the JSN.

Kaly Kaul QC

“Similarly, the JSN EHRC submission places appointment in a diseased ecology in the judicial culture.

“The ‘Ecosystem’ referred to in evidence before you is not working as was intended. We would ask the committee when considering its findings to turn its attention to those wider issues.”

Eastern Eye approached the select committee to comment on the JSN letter and our analysis.

“The committee will consider the JSN letter when it next meets and clearly cannot comment before it has done so,” said its chair, Sir Bob Neill.

Some judges believe the select committee does not have the full picture.

“The select committee was completely misled,” said one south Asian judge. “We want an independent, academic-led, investigation.

“If the committee doesn’t agree, then it should support our calls for a full EHRC investigation.

“I have no doubts that if the select committee asks, then the EHRC would consider its current position.”