Turenne: Uncertainty of deployment discourages applicants
A report for the Ministry of Justice (MoJ) has called for a review of the selection process used by the Judicial Appointments Commission (JAC) for salaried judges.
It also called for new guidance from the MoJ on whether salaried judges should be allowed to return to practice after leaving the bench.
The qualitative research, Motivations to apply for salaried judicial office, based on 61 interviews with fee-paid and recently appointed salaried judges, aimed to analyse why “too few fee-paid judges of a suitable level” apply for salaried judicial posts, such as circuit, district or employment judge.
Author Dr Sophie Turenne, an associate law professor at Cambridge University, said there was “a clear perception” that the JAC selection process “relies on a skill set that is not naturally acquired in legal practice or even as a fee-paid judge, and that the skills which seem to be emphasised appear to have little to do with the skills needed for ‘judgecraft’”.
Some said the process was more suitable for “the selection of civil servants”, others that “judging as a profession required greater focus on legal skills, jurisdictional knowledge in some cases, and judgecraft in particular”.
Respondents’ perception of a “disincentivising” selection process – which it was said also took too long – was “further exacerbated” by the availability of consultants who could help lawyers pass. Less than a fifth of respondents had used one.
Some suggested that the perceived need for these consultants was “further evidence that the JAC selection process was merely an exercise in working out how to jump the hoops”.
The report also called for “renewed guidance upon the terms of the convention that judges should not return to practice”.
Several fee-paid judges “expressed concerns that salaried judges, if disillusioned, would be unable to return to practice”, and questioned whether returning to practice was “any different from the situation of fee-paid judges, who already manage conflicts of interests”.
Dr Turenne said a “reduction of workload and pressure” would be a “key incentive” for well-paid lawyers to apply to become salaried judges, but current judicial workload and working conditions “threaten to remove it” – as also shown in the Judicial Attitudes Survey published this week.
A further “major disincentive” was the uncertainty of geographical deployment or transfer.
“Practitioners are not ready to travel excessive distances, or to be away from home and family upon salaried appointment.
“If this does need to happen, they seek reassurance that transfer closer to home would be possible within a few years of appointment.”
Dr Turenne said potential applicants were aware that salaried judges could work part-time, but this was thought to be “unwelcome and difficult to achieve” if the applicant wanted to work for less than 80% of the time.
Those “typically considered suitable for judicial office are already high earners” as they were in senior positions.
“So, whilst judicial pay in group 7 remains highly attractive to public sector lawyers, who constituted almost a quarter of respondents, it remains a problem for others.”
Fee-paid judges contrasted the potential gains to be made each year in private practice with the probability that a judicial salary would remain relatively stagnant, without even a guarantee that pay would keep up with inflation.
“Those fee-paid judges who retained an interest in applying for salaried positions were wary of the best time at which to apply.”
Dr Turenne said the attractiveness of remuneration for undertaking salaried office “needs to be regarded not only as a key motivating factor but also as part of a wider package presented to potential candidates”.
Fee-paid judges tended to compare a salaried position with their present career, rather than with their fee-paid position.
Among other recommendations were that geographical deployment should be reviewed, to address issues such as relocation, excessive commuting and the possibilities of transfers to different circuits or regions.
“Systematic ways of measuring, scheduling, allocating and monitoring workload” should be reviewed, along with giving judges “a clearer line of recourse in the face of excessive demand”.
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