Changes under the Crime and Courts Act 2013 start to take
effect
The Crime and Courts Act and its regulations improve the
efficiency, transparency and diversity of judicial appointments.
The Act received Royal Assent in April 2013 and the relevant
regulations commenced in September and October. Some of the changes
are now in place and others require policies to be finalised and
published over the next few months.
Working arrangements for judges
- Flexible working is now available in the High Court and above
and opportunities to work flexibly will be clearly highlighted in
each JAC selection process. See the current High Court
selection process for the Queen’s Bench and Family
Divisions.
- Flexible deployment has been introduced so judges can more
easily move between working in the courts and tribunals, to help
judicial career development.
New selection processes
- The JAC will determine the processes to select a pool of
candidates from which future authorisations as deputy High Court
judges will be made. Circuit judges, Recorders and certain
tribunal judges are eligible. The JAC will also determine our
concurrence role in authorisations for Circuit judges to sit in the
Court of Appeal Criminal Division. The processes will be published
on our website when they are agreed. Fundamental to the
proposed new approach will be open and transparent processes that
will provide opportunities for all eligible candidates to be
objectively assessed. The policy for this is being finalised.
- The introduction of an ‘equal merit provision’ to clarify that
where two persons are of equal merit, a candidate can be selected
on the basis of improving diversity. During the summer, the JAC
consulted widely on how this could be applied in practice and we
are now developing a policy.
- The Lord Chancellor and Lord Chief Justice have joined the JAC
in having a statutory diversity duty. They are now required to take
such steps they consider appropriate for the purpose of encouraging
judicial diversity.
- For positions below High Court, the JAC is no longer required
under statute to consult two judges with relevant knowledge of the
judicial vacancies on the candidates it is minded to select. This
‘statutory consultation’ can be with one judge and for some
vacancies, for example lay tribunal positions, no statutory
consultation may be necessary.
- The Lord Chancellor’s powers to accept, reject or ask for
reconsideration of recommendations for judicial appointments
below the High Court have been transferred to the Lord Chief
Justice or to the Senior President of Tribunals for tribunal
appointments. The Lord Chancellor will therefore focus on the more
senior judicial positions. The only exception to this is tribunal
appointments outside of the First-tier and Upper Tribunal structure
(for example the Employment Tribunals), which remain with the Lord
Chancellor.
- In line with the previous point, consultation with the Lord
Chancellor has been introduced for appointments to the Lord Chief
Justice, Heads of Division, and the Lords Justices of Appeal.
The make-up of selection panels
- There must now be an odd number of members for selection panels
for senior judicial roles and those making nominations to the
panels must have regard for the desirability of more diversity
among panel members. There will also be a lay chair for the most
senior appointments - President of the Supreme Court and Lord Chief
Justice – and a better balance of lay and judicial influence in
these decisions.
Composition of the JAC Commissioners
- The composition of the Commission will become more
representative of the roles the JAC selects for and those who are
eligible to apply for them. Going forwards, one of the Judicial
Appointments Commission's judicial members nominated by the
judiciary (through the Judges’ Council) will be a senior tribunal
judge. Two Commissioner roles selected through open competition
will also change. One of the two members from the legal professions
could now be a CILEx Fellow and tribunal lay members may also apply
for what was originally the lay magistrate Commissioner
position.