Sometimes They Come Back

It is not often that differences of opinion between the Lord Chancellor and the Lord Chief Justice can be more easily categorised as diametrically opposed views. That however is the position regarding the view of the Lord Chancellor that the rules should be changed to allow Judges to be appointed as Judges and then leave the position to return to legal practice.

Becoming a Judge

Becoming a Judge is a huge step. Of course those becoming Judges will have had a taste of what life is like when they have done part-time sitting. A full-time job is a very different matter. Suddenly going from the camaraderie of Chambers or a firm to a much more lonely existence. Coping with an income which albeit by general standards extremely good, may well be less than received when in practice. Suddenly having the burden of making the decisions, instead of presenting one side's point of view. Many people thrive on it. Not everyone does. Therefore being effectively tied to the position is bound to loom large as a concern for potential applicants.

Judging is lonely

Anyone who thought the contrary is unlikely to have had their opinion changed by the recent news that, at the instigation of the Lord Chief Justice, a 24-hour counselling helpline is being set up for Judges. This is to help them cope with the stress of the job. This arose in response to a survey which found that a sufficient number of Judges wanted such support to make providing it worthwhile. As the Lord Chief Justice himself said, "Judging is necessarily a solitary task, and can be lonely". It is much better to deal with such issues than attempt to brush them under the carpet, but it demonstrates precisely why many might be worried about the change to becoming a Judge in the first place.

Lord Chancellor's concern

The Lord Chancellor is concerned that not enough women or people from ethnic minorities are applying for judicial posts. I think he is right that the irrevocable nature of the step might tend to put off more people from these categories than in general. This is simply because there are fewer women and ethnic minority judges to start with. If you are concerned about being isolated and whether you will like a job, that concern is likely to be exacerbated if you have any worry that your position will be worse for being part of a small minority. If it is only a lurking fear that somehow you might not fit in or that that will make things more difficult, it is bound to be a disincentive. That will be the more so if you think you are making an irrevocable step.

Lord Chief Justice's objections

Unfortunately the objections of the Lord Chief Justice are cogent ones. Once the judicial position is effectively "temporary" the floodgates will be open. One can hardly allow only certain categories of people to renounce judicial office and go back. Very difficult to draw any coherent guidelines as to in what circumstances people would be able to cease. Once the principle is there, it is likely that Judges will be able to go back to practice when they want to.

Inter Judge communication

How Judges see and communicate with each other is bound to be affected once colleagues are no longer effectively permanently part of the judicial posting, but might become lawyers appearing in front of them. Judges usually discuss legal points, and their views of the lawyers appearing before them, with complete frankness. It would be damaging if this was in any way affected.

Currying favour

The reality is that once lawyers can return to practice after being Judges, there will inevitably be those who see that as a useful career path. There will likewise inevitably be concerns that Judges might be currying favour with prospective employers by treating such firms more generously when they appear before the Judge. Although I am sure that would not happen, the perception could be damaging to the judicial system.

I think therefore, with some reluctance because I can see why the Lord Chancellor was keen to take such steps, that the proposal would be damaging to the judicial system. The view of Judges as practising lawyers should be that, once they are gone, they are gone and that is it.

Michael J. Booth QC