Statutory consultation

Consultations required by law

The process to appoint judges in England and Wales is governed by the Constitutional Reform Act 2005 and the Judicial Appointments Regulations 2013.

The Judicial Appointments Commission (JAC) has a duty to select and recommend candidates for appointment to the judiciary solely on merit. It can only select and recommend candidates if satisfied that they are of good character. In addition, the JAC must have regard to the need to encourage diversity in the range of people available for selection for appointments.

The law also 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, 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 a selection is to be made, or who has other relevant experience.

The JAC, sitting as the Selection and Character Committee, is ultimately responsible for selecting and recommending candidates for judicial appointments. When making recommendations for judicial appointment, it considers all materials including self-assessments, independent assessments, panel evaluations and statutory consultation material.

The JAC’s approach

The JAC has introduced a revised approach to the use of statutory consultation for exercises launching from September 2022. This is in response to an independent review of how statutory consultation operates.

Each selection exercise information page will detail the processes in place and other important information with which candidates can and should familiarise themselves. It will include information about the statutory consultation process.

Whether or not statutory consultation is retained, candidates who are already judicial office holders are encouraged to speak to their leadership judge around their application and suitability for the role. This can also be useful to candidates nominating their leadership judge as an independent assessor.

When statutory consultation is retained, it will always be requested prior to selection day to the named statutory consultee. They are given guidance, which is published on each exercise information page, highlighting the need for objective and evidence-based comments. They are likely to seek comments from sub-consultees as part of this process. These are likely to be from leadership judges, and helps to ensure that comments from the statutory consultees are fully evidence-based.

Panel members will use the comments provided to inform the overall assessment of the candidate against the merit-based selection criteria, where it is considered alongside the candidate’s self-assessment, independent assessment and performance at selection day. Panel members fully understand the need for objective, evidence-based statutory consultation comments, and that mere assertion or speculation is not to be taken into account and that no adverse conclusions should be drawn in the absence of statutory consultation feedback.