Consultations required under the Constitutional Reform Act 2005 and Judicial Appointments Regulations 2013
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. Further, 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, Lord 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.
The JAC, sitting as the Selection and Character Committee, is ultimately responsible for selecting and recommending candidates for judicial appointments. It is responsible for all character issues. 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 the operation of statutory consultation.
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.
Where statutory consultation is not waived, comments from the statutory consultee will always be sought ahead of selection day on all shortlisted candidates. The selection day panel will use relevant statutory consultation material to inform the overall assessment of the candidate against the merit-based selection criteria, when it is considered alongside the candidate’s self-assessment, independent assessment and performance at selection day.
Statutory consultees must only provide responses that are objective and evidence-based. They are given clear guidance to this effect, which is published on each individual selection exercise information page where relevant. Panel members understand fully the need for objective, evidence-based statutory consultation responses, 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.
Other background checks
The JAC also has a statutory duty to check the good character of candidates, including checks with relevant professional bodies.