Why changing the judicial selection process matters

• MICHAEL ROOZE
• 16 March, 2022

Follow Us

By: MICHAEL ROOZE

A FRIEND of mine applied for promotion in the judiciary recently to become a senior judge, and he was not successful.

It seems that one of the panellists at the interview stage had disagreed with him in the past about institutional, systemic and structural racism in the profession. You see, my friend is not white. He has an incredible judicial mind, and he is deeply respected among fellow judges and those academics who teach law and opine about legal matters.

So, instead, the Judicial Appointments Commission (JAC) struck out an asset, appointing someone who was second-best and nowhere near as qualified or experienced in judicial matters.

My friend’s lived experience is that he has faced racism as a judge and in the judicial system. Who are we, of privilege, to deny him of that?

I have been retired for a few years now, and it seems little has changed in the way judges are appointed and promoted.

In my case, 15 or so years ago, I was encouraged by my colleagues in the north-east circuit to apply for promotion to full-time judge. I am told that I did very well in the written application and what is called the administrative sift.

However, once the JAC ‘consulted’ other judges, which it claims it must do by statute, my chances of being promoted evaporated. Not only that, I had no chance to face my detractor because these consultations are carried out in secret. These so-called ‘secret soundings’ mean no one ever knows who has blackballed you: in theory at least, because the judiciary is such a place that nothing stays secret for too long.

The point is that this part of the selection process is, in my view, shameful, disgraceful, and anachronistic. It is from a period when a tap on the shoulder meant jobs were given to mates on a nod and a wink or that it was merely gubbins’ turn. It allows for nepotism and means true diversity will never be achieved at a time when we need people to challenge the status quo. That is one reason why the JAC is not fit for purpose, and it should be replaced by a better system.

Before I make suggestions on what that new process might be, let me address something that the JAC current chair, Lord Kakkar, said during his justice select committee hearing last June (29). That hearing, incidentally, was brought about because of the campaign by Eastern Eye which exposed the culture of racism and bullying in the judiciary.

Lord Kakkar made a big deal about the Judicial Diversity Forum. The fact is that you do not need a ‘forum’ or ‘committee’. Clearly, we have a problem with diversity. So, fix it. How? You need a bit of common sense, and you need somebody who is prepared to take robust decisions to say, ‘what you are doing at the moment is simply unacceptable. Come back in a month and tell me what your solutions are.’ And if they cannot do it, kick them out.

That’s exactly what the London mayor, Sadiq Khan, did when he put the outgoing Met commissioner, Dame Cressida Dick, “on notice”.

The first thing to make clear is that we need an independent judiciary free from political influence or interference. That means judges cannot be appointed if they belong to a political party or show any sign of political partisanship.

The second thing is that the application process must be blind. No one in the sifting process must know the identities of the applicants, nor interview them if they make it through the sift stage.

The third thing is that you do not need civil servants to be part of the selection process. Few are legally trained, and most will do what the legal panel members tell them to do. If we need a reason or precedent of their not being involved, it is this. Civil servants are not involved in similar selection exercises for, say, the armed forces, the police and other emergency services, or for appointments for medical, surgical or nursing posts in the health service. So, what then is their justification for being involved in the selection of judges, especially when they may have zero legal experience?

The fourth is that we need people who are legal experts, and that means academics and judges must be part of the process.

The fifth and most important stipulation is we must get rid of secret soundings dressed up as ‘consultations’ to stop the judiciary being, as it is now, an old boys’ network with people who will never rock the boat. We should celebrate and welcome the independent mind, and that means we need a panel unafraid to challenge and be challenged.

Similarly, when it comes to progression, the panel must consider the past five years’ appraisals. Judges should declare that nothing they have done will bring the judiciary into disrepute, on the understanding that should something arise after appointment, then it is grounds for instant dismissal. Unfortunately, on the senior benches today, we have judges who are tainted by allegations of bullying, misogyny and racism. This cannot be right. What judges must expect is that their record in office, their rulings, their character are scrutinised by an independent panel who truly understand justice.

Every week, the Judicial Support Network hears of cases of bullying, discrimination and sexism which make our skin crawl, so upsetting are the details. We asked for the Equality and Human Rights Commission to investigate, only to be told that these appeared to be systemic issues and it dealt with individual cases.

Only one judge, Claire Gilham, took on and beat the Ministry of Justice (MoJ) at great personal and physical cost. Another, Judge Kaly Kaul QC, is courageously fighting a case which forced the MoJ to admit it had a duty of care for judges.

The Judicial Office will say that if we object to appointments, we should go to the judicial appointments and conduct ombudsman. My view is that the JAC and the office of the ombudsman are too close. The ombudsman takes a very, very narrow view of its role. It is looking only to see if there has been maladministration in the interview and assessment processes. It is not looking to see if the process has stopped candidates being considered for a senior position or, conversely, if somebody was granted consideration when they should not have been.

My time of a rankling sense of injustice has long gone. I do not benefit from the change I am advocating. However, my fear is for the future of this wonderful democracy we call the United Kingdom. I have the privilege of being pale, male and stale, and if I do not speak up, who will? If I do not do so now, when I see justice under attack, when is the right time?

This fight matters because if judges can be cowed, what hope is there for the rest of us who seek our day in court?

Michael Rooze, who served 30 years as a deputy district judge in the north-east circuit in civil courts, was compulsorily retired aged 70 in 2016. He is a member of the Judicial Support Network.