Evaluation on the revised approach to statutory consultation

Introduction (Back to top)

The JAC has carried out an evaluation on the revised approach to statutory consultation after a two-year cycle of recruitment exercises. 

The evaluation found the revised approach has led to a speedier process for exercises where statutory consultation is waived, and less burden on judicial time, whilst still ensuring that only those who are appointable on merit are successful due to the robustness of the JAC’s other selection processes. 

Where statutory consultation was not waived, the evaluation showed improvements in both the consistency and quality of the responses received under the revised approach.  

This reflects the clearer guidance issued by the JAC to consultees, ensuring a fair and evidence-based selection process.  

The JAC remains committed to continuous improvement by actively liaising with consultees and stakeholders, issuing clear, practical guidance and increasing understanding of the statutory consultation process.  

Background (Back to top)

The Judicial Appointments Commission (JAC) selects candidates for judicial office in England and Wales, and for some tribunals with UK-wide powers. The JAC has a statutory duty to select people for judicial appointment only on merit and to select only those who are of good character. It also has a statutory duty to have regard to the need to encourage diverse candidates from a wide field. It is recognised by the JAC that having a diverse range of individuals serving in judicial posts is important. 

JAC selection processes are unique for multiple reasons. There are often very high candidate volumes for small numbers of vacancies in prominent positions. The selection processes used vary across selection exercises, but all are subject to rigorous checks and balances. While the JAC is responsible for making recommendations for the appointment of judges across England and Wales, it does not make the final decision on who is appointed or have any jurisdiction over individuals once they are in the role.  

The law requires the JAC to consult a “statutory consultee” before making a recommendation for appointment. Statutory consultation is undertaken unless the JAC Chair and the Appropriate Authority (Lord Chancellor, Lord/Lady Chief Justice or Senior President of Tribunals) agree in advance to waive it. A statutory consultee must be a person who has held the office for which selection is to be made, or who has other relevant experience. 

Independent Review of Statutory Consultation (Back to top)

In 2021, Work Psychology Group (WPG) were commissioned to conduct an independent review of the operation of statutory consultation. The review was commissioned to ensure that statutory consultation was being used proportionately, effectively, and in line with the JAC’s statutory responsibilities. The review highlighted several important positive findings on how the process of statutory consultation was being undertaken, as well as how the process could be improved. In response to the review, the JAC adopted a revised approach to the operation of statutory consultation for exercises launching form September 2022.  

Evaluation on the revised approach to the operation of statutory consultation since 2022 (Back to top)

The JAC committed to evaluate the revised approach to the operation of statutory consultation after a full two-year cycle of exercises. The evaluation focused on the return rates, timing, quality, and consistency of statutory consultation responses in exercises where it has been retained; whether the revised approach has impacted the progression rates for JAC’s four target groups (women, ethnic minority candidates, disabled candidates, and solicitors); and stakeholder perceptions of the process. 

The evaluation covered legal selection exercises launched between September 2022 and completed by August 2025, with a deeper analysis of nine exercises ranging from fee-paid judge of the First-tier Tribunal and District Judge through to Deputy High Court and High Court Judge. These exercises launched between September 2022 and December 2024. Evidence was gathered from multiple sources including application and exercise data, 572 consultation responses and stakeholder feedback from the Judicial Diversity Forum members, Judicial Office and JAC Panel Chairs.  

Requests to Waive or Retain Statutory Consultation  

As part of the revised approach, the Commission considers whether to request the relevant Appropriate Authority dispense with the requirement for statutory consultation responses in an exercise. The relevant factors taken as part of this decision include:  

• the size and nature (fee-paid or salaried) of the exercise, 

• the likelihood that consultees will have relevant information on the suitability of candidates for the role and for a significant proportion of the candidate pool, and 

• the timing of when any statutory consultation could be undertaken. 

The evaluation found that the revised approach of seeking a waiver of statutory consultation for some exercises has been effective, leading to a speedier process for exercises where statutory consultation is waived, and less burden on judicial time, whilst still ensuring that only those who are appointable on merit are successful due to the robustness of the JAC’s other selection processes.  

Between September 2022, when the revised approach was introduced, and August 2025, there have been 65 completed legal exercises, with 51 exercises retaining and 14 waiving statutory consultation. This totalled 14,453 applications being received for these exercises, 11,852 of these applications (82%) were for roles where statutory consultation was waived. While statutory consultation has been retained on the majority of exercises, this was due to the Commission or the Appropriate Authority believing the consultee or sub-consultees could provide relevant information on potential candidates.   

For roles where statutory consultation was retained, 45 out of the 51 exercises required previous judicial experience. This provides the same opportunities for candidates to be known to the consultee or sub-consultees regardless of their professional background as candidates are generally required to be a sitting judge with a minimum number of sitting days. 

The JAC Board have agreed to continue with the current process when considering whether to request the relevant Appropriate Authority to waive statutory consultation for all exercises. The factors are considered on a case-by-case basis, taking into account whether the exercise is fee-paid or salaried, the likelihood that consultees will have relevant information on the suitability of candidates for the role and for a significant proportion of the candidate pool, and the timing of when any statutory consultation could be undertaken. 

Return Rates and Quality of Responses   

The evaluation determined that there have been improvements in the return rate and quality of responses received, reflecting the improved guidance issued to consultees contributing to a better evidence base for selection.   

For all legal exercises launched between September 2022 and August 2025 no feedback was received for 166 of the 1,100 candidates invited to interview. The nil responses are spread across all groups, including our target groups (ethnic minority, women, and solicitor candidates) in proportion to their representation at selection days.   

Where a candidate did receive a nil response, this was mainly due to the candidate being a newly appointed judicial office holder or because the candidate was not known to the statutory consultee or sub-consultee. This shows that the vast majority of those we consult on are known by either the consultee or sub-consultee and receive some feedback during statutory consultation. If a candidate does receive a nil response no adverse conclusions are drawn from this which is reiterated to all panel members during every selection exercise.  

Across the nine exercises where a deeper analysis was undertaken, the average return rate of responses was 83%. Responses were requested for 572 candidates across the nine evaluated exercises with the responses assessed for evidence quality using a four-point scale¹. Overall, 78% of responses had some evidence with 57% of responses judged as being mainly or fully evidence-based, with a minority only providing assertion or no evidence and therefore not taken into account. More senior roles such as High Court and s9(1) authorisations received the highest proportion of well-evidenced responses. Approximately 17% of responses referred to Independent Assessments, which were generally evidence-based. While referring to Independent Assessments as part of statutory consultation responses can risk duplication of views — especially when candidates nominate leadership judges as assessors — panels are careful to consider all evidence holistically and weigh its source appropriately. 

Stakeholder perception 

As part of the evaluation, all members of the Judicial Diversity Forum (JDF) were consulted as well as officials at Judicial Office. The Lady Chief Justice also sought feedback from the Senior President of Tribunals, Master of the Rolls, Heads of Division and Senior Presiding Judge to understand how the statutory consultation process is working in their jurisdictions, as the relevant named statutory consultees on many exercises. Comments were also sought from Judicial Office and JAC panel members. 

The Lady Chief Justice, Lord Chancellor, and JAC Panel Chairs all commented on seeing improvements with the consistency and quality of the responses with responses being more evidence-based. It was noted that statutory consultation remained appropriate for salaried exercises, but they welcomed waiving statutory consultation for some exercises, which is working well. It was also noted that the revised approach has reduced the bureaucratic burden on the JAC and other bodies.  

Some JDF partners commented on the continued negative perception of statutory consultation amongst their members. To help address this, the JAC is launching a new website which provides better support to all candidates with clearer information on the selection process and improved navigation to facilitate easy access to information, including information on statutory consultation. The JAC has also updated guidance issued to statutory consultees, candidates and JAC Panel members to provide further clarity on the process and ensuring statutory consultation continues to be operated fairly. The JAC will continue to work closely with JDF partners to improve perceptions of statutory consultation.  

Other comments received focused on concerns around the diversity in the judiciary and the role that statutory consultation may play in this. The 2022 evaluation by WPG found that there is no evidence that the statutory consultation process impacts disproportionately on recommendations for appointment for any group, and the evaluation of the revised approach continues to support this. 

The JAC maintains its commitment to supporting the achievement of greater diversity, which is one of its strategic aims for 2024 to 2027. The JAC has implemented a range of measures which have seen steady progress over recent years for applications and recommendations across all diversity categories.  

Evaluation Conclusions (Back to top)

The JAC believes the revised approach to statutory consultation ensures a proportionate approach to statutory consultation by ensuring only exercises where the consultee or sub-consultees are likely to know the candidates continue to seek responses. Statutory consultation has been waived for most fee-paid roles, and those that require no previous judicial experience. Competitions that are subject to statutory consultation, whilst make up the majority of individual exercises, actually make up a small portion of the overall number of candidates involved in overall process. 

Since the revised approach was implemented, there have been improvements in both the consistency and quality of the responses received through statutory consultation. This reflects the clearer guidance issued to consultees, ensuring a fair and evidence-based selection process continues. The JAC recognises that the effectiveness of statutory consultation depends not only on the quality of the responses received, but also on the clarity of expectations set for consultees. To that end, the JAC remains committed to continuous improvement by actively liaising with consultees and issuing clear, practical guidance. 

The JAC is also committed to transparency and to continue improving perceptions of the statutory consultation process among candidates and wider stakeholders. The JAC will continue to engage proactively with stakeholders — including JDF partners — in this regard.  

Judicial Review (Back to top)

In July 2025, in a judicial review claim against the JAC, the Court of Appeal found that the JAC’s use of statutory consultation including the practice of consulting sub-consultees was lawful. However, the judicial review identified areas in which the statutory consultation process could also be improved. This includes making it clear to candidates that sub-consultees may be consulted, as well as giving due consideration to ‘five different options’ in the handling of negative responses received as part of the statutory consultation process.    

‘The five options’ identified by the Court of Appeal as lawfully available to the JAC when handling statutory consultation responses are as follows:  

1. disregarding the material  

2. seeking to explore the material at interview without making the candidate aware of it or making any direct reference to it 

3. putting the gist of the material to the candidate, whilst preserving the confidentiality of the consultee and sub-consultees 

4. seeking the consent of the consultee to disclose the material for the candidate’s responses and then doing so, if consent is granted 

5. even if such consent is refused, deciding to put the material to the candidate under section 139(4)(b) of the Constitutional Reform Act 2005 

Consideration of these ‘five options’ has been incorporated into the statutory consultation process, and guidance documents have also been updated to reflect this. The JAC welcomes the Court of Appeal’s judgment that the use of statutory consultation and the practice of consulting sub-consultees was lawful. It also welcomes the opportunity to improve our guidance and process to ensure that statutory consultation continues to be fair for all and of considering ‘the five options’ set out by the Court of Appeal.  

Next Steps (Back to top)

As part of the evaluation and the outcome of the judicial review claim, the JAC has brought in a number of changes to the operation of statutory consultation. These include: 

• publishing this evaluation  

• updating the guidance provided to the statutory consultees

• updating the guidance provided to candidates

• continue to work with partners to develop further messaging to candidates and stakeholder groups about the use of statutory consultation within the judicial appointment process 

The JAC will continually keep this topic under review and update the relevant guidance documentation accordingly.  

Further information on the evaluation can be found in the paper presented to the Judicial Diversity Forum Officials meeting in November 2025.