Lord Judge wants to bring back assistant recorders

I am surprised that nobody has yet reported the most important announcement to come out of the Lord Chief Justice’s conference on judicial diversity yesterday — and one, incidentally, that was not included among the many suggestions put forward by those taking part in the meeting.

If you want to become a full-time judge in England and Wales, you are expected to begin by sitting part-time for about four weeks each year. This makes good sense: you can decide if you like the work and “they” can decide whether you are any good at it.

This is particularly important for the sort of people who would not think of themselves as potential judges — especially women and those from minorities.

Until 2000, there were two types of part-time judges — recorders and assistant recorders. Assistant recorders were appointed for a fixed period of about five years, sitting for a minimum of 20 days a year. If their work was good enough, they could become full recorders after three to five years. If it was not, that was the end of their judicial careers.

Recorders are also appointed for an initial period of five years. But their appointments are automatically extended for further successive terms of five years, subject to the individual’s agreement and the upper age limit, “unless a question of cause for non-renewal is raised or the individual no longer satisfies the conditions or qualifications for appointment”.

Although one of the grounds for non-renewal is “structural change to enable recruitment of new recorders”, it’s much harder to get rid of a new part-time judge who’s just not very good at the job than it was when that person’s job would simply lapse after five years.

Why, then was the post of assistant recorder abolished in April 2000, with all assistant recorders being promoted to recorder? It was because of a ruling the previous November 1999 by the High Court of Justiciary in Edinburgh.

The Scottish court decided that temporary sheriffs — criminal judges — were not sufficiently independent of the government because their appointment was subject to renewal every year. That meant they were not the impartial tribunal required by article 6 of the Human Rights Convention. The convention, incidentally, was already enforceable in the Scottish courts at that time because of devolution: the English courts had to wait until October 2000, when the Human Rights Act took effect.

Although the decision in Starrs v Ruxton was not binding in England and Wales, the Lord Chancellor, Lord Irvine, thought it wise to follow it. One of the consequences has been that lawyers continue to sit as recorders long beyond the age when they might be considered for a full-time appointment. That means there are fewer opportunities for younger lawyers to be tried out. And it’s the younger lawyers who tend to be from minority groups.

At the conference yesterday — lavishly supported by Clifford Chance — the Lord Chief Justice announced that he would be inviting the present Lord Chancellor, Jack Straw, to reinstate the post of assistant recorder. “Having listened to the debate,” Lord Judge said at the end of the conference, “I do intend to write to the Lord Chancellor to ask him whether the rules in relation to assistant recorders — which were abolished because of the decision in Scotland — really should apply to us.”

This strikes me as a good idea. I am not for a moment suggesting that people who do not come from traditional backgrounds are not going to be as good at judging as white middle-class male barristers. It is simply that those who appoint part-time judges can afford to be more adventurous in their choices if they are not going to land us with someone who, for entirely proper reasons, has substantial security of tenure. Who knows: they could find a future black woman Lord Chief Justice working in a community law centre.

Posted at March 12, 2009 12:33 PM