As a family law solicitor in a small market town, the occasions when my cases found their way to a hearing before a High Court Judge were relatively few and far between. The need to instruct leading counsel was even more infrequent. My first foray into the world of judicial review led to a hearing before a High Court Judge, Mr Justice Swinton Thomas. I instructed Nicholas Wall QC. On the first morning we gathered in the corridor outside the courtroom Although this was thirty years ago, I still remember the start of our conversation as if it were yesterday:
Me: What do we know about this judge?
NW: I had him round for lunch yesterday?
I immediately realised I was punching well above my weight.
Although it is sometimes said that it is important to know your judge, that did seem to me to be taking matters to the extreme! No doubt with Art 6 in mind, Nicholas Wall told me that he had informed leading counsel for the local authority that he would be entertaining the judge for lunch and that he had invited her to join them. She declined!
The Courts and Tribunals Judiciary website has a section headed ‘Who are the Judiciary?’ It contains very limited biographical information about the Lord Chief Justice, the Heads of Division and other senior judges. For the vast majority of judges, at every level, no biographical information is provided.
I retired as a full-time judge in February 2019. In retirement, I have been occupying my time by reading judicial biographies and autobiographies (hereafter simply ‘biographies’). I have restricted myself to biographies of senior judges and, in particular, subject to one exception (Lord Devlin) to those who served during the last 50 years.
Lord Wilberforce begins his autobiography with a word of caution:
“Autobiographies are, as is well known, essentially works of fiction, or, at least, of imagination, and this is as it should be. Nobody wants or hopes to know the verified historical facts of another human being’s life; not even (or particularly not) of his nearest and dearest. Equally nobody is capable, by ability or temperament, of giving a true, detailed, or balanced account of most of the events of his life – least of all of those, which are really of interest. All are heavily coloured in the transmission to our present memory – some deliberately so.”
The subjects of these biographies were born in the first half of the last century. Life then was very different. Speaking of his life in the 1930s, Wilberforce writes that:
“Every household down to well in the middle classes had servants; my parents, though retired, never had less than three, living in, a cook, a parlour maid and a housemaid…” Lord Devlin describes a similar picture saying that, “In those days even the smallest bourgeois house had a staff of two servants and a cook.”
The class system continued to thrive. Devlin says he “thought it at worse a decorative irrelevance, while at best it had a definite appeal for those who today [he was writing in shortly before his death in 1992] would be described as ‘young and upwardly mobile’.”
That social divide had consequences. Devlin refers to, “a strong eighteenth-century principle that no progress could be made in any profession without INFLUENCE”. He goes on to say that “up to the middle of the twentieth century, the idea that promotion should come entirely on merit was still quite feeble.”
In my opinion, Devlin understates this point. All of the biographies I have read relate to people who were appointed by means of the proverbial ‘tap on the shoulder’. There was no formal appointments process. Each was summoned to go and see the Lord Chancellor. This ‘tête à tête’ was not an interview. The Lord Chancellor had already taken ‘soundings’. The purpose of the meeting was to enable the Lord Chancellor to make an offer. The ‘tap on the shoulder’ process was the complete antithesis of transparency.
Despite that, as recently as 2011 (when his autobiography was completed shortly before his death) Sir Ronald Waterhouse strongly defended that process:
“When I was appointed as a presiding judge it was made clear to me that … I would be consulted on all judicial appointments on circuit, other than lay magistrates … I was told that our recommendations would be implemented unless, unusually, there was some special reason for not doing so … I am glad to say that during my period as a presiding judge all of our recommendations were accepted. More importantly, I am convinced that those recommendations were right and proved to be fully justified…”
He goes on to say,
“There are, of course, many critics of this system on the ground that it savoured of nepotism and exclusivity but I make no apology for it. Much of the criticism came from failed applicants whose applications had been rightly rejected or from special interest groups.”
The importance of a transparent system for making judicial appointments entirely on merit did not gain significant traction until the beginning of the present century. Until then wealth, privilege and patronage were likely significantly to enhance the prospect of appointment to the highest echelons of the judiciary.
The Judicial Appointments Commission (JAC) was set up in April 2006 pursuant to section 61 of the Constitutional Reform Act 2005. Section 63(2) provides explicitly that “Selection must be solely on merit”. However, where two candidates are of equal merit, one candidate may be preferred over the other “for the purpose of increasing diversity” within that particular group of judges. Section 64 provides that the JAC “must have regard to the need to encourage diversity in the range of persons available for selection for appointment”. Today, all judicial appointments, from the Lord Chief Justice down to lay members of tribunals (except for Supreme Court Justices), are dealt with by the JAC.
Waterhouse is sceptical. He writes:
“I cannot accept that the new appointments commission will achieve any better results and the risk of inappropriate selection is now significantly higher. Performance at interview can be misleading, and question papers addressed to potential judges are both demeaning and rather ridiculous… I am not aware that [the tap on the shoulder] process resulted in any important error in an appointment: there were, inevitably, some injustices for a variety of reasons but no appointments system can eliminate these entirely and a commission certainly will not do so.”
So, in light of that heavy dose of scepticism, how has the JAC fared in improving diversity? Hilary Heilbron’s biography of her mother, Rose Heilbron, depicts Rose as a trailblazer. Amongst her many firsts, she was the first woman to be appointed Queen’s Counsel, the first to be appointed a Recorder, the first to be appointed a Commissioner, the first to be appointed Leader of her Circuit, the first to be appointed a Bencher of her Inn and the first to be appointed Treasurer of her Inn. So many firsts. So much male dominance and prejudice to overcome in a profession that was then a male stronghold. On any view her career can properly be described as stellar. And yet, she was not the first woman to be appointed to the High Court Bench. That accolade went to Elizabeth Lane in 1965. Rose was disappointed. Hilary suggests that had Rose been a man she would have been appointed to the High Court Bench a decade earlier and would probably have gone on to be promoted to the Court of Appeal. She makes out a very strong case. I find it difficult to disagree with her. Rose Heilbron was appointed to the High Court in 1974.
In 2015, I was invited to give a talk to sixth formers at St Angela’s Ursuline School in Forest Gate, London. My talk was entitled ‘Being a Judge’. One of the PowerPoint slides I put up was a photograph of the twelve Supreme Court Justices (SCJs) I asked whether anything in particular struck them. St Angela’s Ursuline School is an all-girls Roman Catholic School. It is perhaps unsurprising that they immediately noticed that there was only one female SCJ, Baroness Hale Baroness Hale was appointed a Law Lord in 2004. Today two of the twelve SCJs are women.
In 1988, 23 years after the appointment of the first female High Court Judge, Dame (now Baroness) Elizabeth Butler-Sloss became the first woman to be appointed to the Court of Appeal. It was another 16 years before the first woman was appointed to the House of Lords. Progress can hardly be described as rapid.
Yet Waterhouse in his autobiography (2013) wrote:
“The recurring complaints about the low percentage of women appointees, for example, were quite unjustified because, throughout my time as a judge, the proportion of eligible women appointed to the bench was high and increasing: the pace of increase in the numbers reflected the rate at which women barristers were achieving appropriate seniority rather than any past discrimination in making the appointments.”
And as recently as 2015, in his autobiography, Lord Millett writes,
“The most positive change has been the enormous increase in the number of women at the Bar and the arrival of significant numbers of them on the High Court Bench. When I began there were very few women in practice at the Bar and no female High Court Judges at all. All that has changed radically; and it has done so by a natural process as more and more women were attracted to the profession and did not need to be promoted by demeaning calls for greater ‘diversity’.”
Baroness Hale has been in the vanguard of those championing the role of women in the law and in particular the importance of increasing their representation at the highest levels of the judiciary. For my part I find it impossible to agree that her efforts could conceivably be described as ‘demeaning’. Men and women have different experiences of life, different insights and different perspectives all of which need to find equal voice in the development of the law.
Today, 55 years on from Lane’s appointment to the High Court, men still significantly outnumber women in the ranks of the senior judiciary.
If women have found advancement to the senior ranks of the judiciary to be a continuing struggle, their struggle is massively eclipsed by the struggle of candidates from a BAME background. The pupils at St Angela’s Ursuline School in Forest Gate identified not only the fact that there was only one woman in the Supreme Court but that all of the judges in the Supreme Court are white. Given that many of the pupils at St Angela’s are themselves from a BAME background that, too, is not surprising.
There are currently three High Court judges from a BAME background, all in the Queen’s Bench Division, and one in the Court of Appeal. This is simply not good enough.
Notwithstanding the fact that sections 63 and 64 of the Constitutional Reform Act 2005 have been in force for 14 years, Clive Coleman, BBC legal correspondent, has recently made the point that “Diversity has remained a stubbornly difficult issue for the judiciary, which has often been described as ‘stale, male and pale’”. Coleman reports that in an interview with Lord Reed, President of the Supreme Court, Lord Reed said that he hopes a justice from an ethnic minority background will be appointed before his retirement in six years’ time. With respect, that does not seem to be a particularly challenging ambition.
Of the 13 appointments to the High Court announced in September and October 2020, five are women; none are from BAME backgrounds. Diversity remains a significant problem.
Recruitment and retention
Diversity is not the only concern. So, too, are the difficulties of recruitment and retention. In his autobiography, Sir David Keene wrote,
“It is now increasingly difficult to get the most able barristers to become judges. On one recent round of selection, the Judicial Appointments Commission found itself having to leave a number of High Court positions unfilled because candidates of sufficient calibre had not applied.”
The same point has been made by the Senior Salaries Review Body (SSRB). In its major review of judicial salaries in 2018, the SSRB concluded that,
“There is very strong evidence for recruitment difficulties in the High Court in England and Wales, and in Northern Ireland. Three successive recruitment exercises have failed to fill all the available vacancies in England and Wales. The shortfalls have accumulated and mean that, as of September 2018, the number of vacancies is 14, which is unprecedented. Further vacancies are expected this year, from promotions and retirements. Even if the judiciary improves its workforce planning, on present trends there is likely to remain a significant number of vacancies.”
The 2020 SSRB report notes that,
“shortfalls in appointments remain at High Court and Circuit Bench levels, with both benches continuing to operate below the statutory or desired complement”.
Whether, today, enough “candidates of sufficient calibre” are seeking appointment to the High Court is an open question.
There is another problem. On 4 November 2016, the Daily Mail’s front-page headline screamed “Enemies of the people”. The headline referred to the decision made by three senior judges that government ministers did not have the power, without a vote in Parliament, to give notice to the European Union of its intention to leave the EU. In his recent book, Enemies of the People? How Judges Shape Society, journalist Joshua Rozenberg made the point that,
“The newspaper’s headline and the government’s inadequate response to it had a much greater impact on the judiciary than most people realised at the time. Judges in the United Kingdom feared for their safety. Recruitment and retention became more of a challenge.”
I agree. In his recent evidence to the House of Lords Select Committee on the Constitution, the Lord Chancellor, Robert Buckland QC MP said, “My role is, first, the formal role of guardian of the judiciary …” His predecessor, Liz Truss, signally failed to stand up for the judiciary following the attack by the Daily Mail.
Comparisons with America
I cannot leave this review without mentioning the recent confirmation hearing in the USA concerning the appointment of a new Supreme Court Justice. Some years ago, during a panel discussion, commenting on the US nomination process for the appointment of a new Supreme Court Justice, the then Lord Chancellor, Lord Mackay, observed that in America judges are selected based on their opinions, whereas in the UK they are selected based on their ability to form an opinion once they have heard all of the evidence.
Quite so. Heaven forbid that the appalling spectacle we have witnessed in the confirmation hearings relating to the appointment of the two most recent US Supreme Court Justices should ever be regarded as a template to be followed in this country.
Recruitment and retention are still a challenge. Encouraging practitioners of the highest calibre to apply for judicial appointment is of critical importance. So, too, is the need to achieve the level of diversity which will properly reflect the society the judges are appointed to serve. On all of these issues we still have a long way to go.
His Honour Clifford Bellamy is a former Family Court and Deputy High Court judge. His book The ‘Secret’ Family Court: Fact or Fiction (Bath Publishing, £20) was published earlier this year, and reviewed here on this blog. He is also patron of the Transparency Project.
Featured image: the Lowry Nightingale Court Coat of Arms (via Judiciary website).