Katie Thomas, R (on the application of) v Judicial Appointments Commission

In these Judicial Review proceedings, District Judge Katie Thomas (the claimant) challenges the fairness of the process of consultation used by the JAC in undertaking selection exercises for judicial appointments. Her concern relates to the use that the Selection and Character Committee (the SCC) of the JAC made of material concerning the claimant that was provided to the JAC in response to the consultation request it made to the Deputy Senior Presiding Judge (the DSPJ or the Consultee).

The JAC’s evidence explains that the selection panels which had interviewed the claimant on 26 November 2021 (the panel or panels) recommended to the SCC, in its proposal paper (the proposal paper), that the claimant should be found to be selectable in both the criminal and civil jurisdictions. At the SCC meeting, however, on 10 March 2022 (the SCC meeting), the SCC decided that the claimant was not appointable in either jurisdiction because the SCC reduced the claimant’s grade for “Working and Communicating with Others” from C (sufficient evidence) to D (insufficient evidence).

The minutes of the SCC meeting at which this decision was made record the following:

The JAC’s evidence explained that the Consultee was told, in guidance, that consultees might “turn to others with a deeper or more recent or more developed knowledge of a candidate”. In fact, the Consultee said in his consultation response that “he had sought the views of relevant leadership judges including the Presiding and Family Division Liaison Judges on all Circuits, … and other Regional Leadership Judges”. It is likely that the negative material produced by the Consultee about the claimant emanated from one or more third-party sub-consultees. It is not clear precisely who provided that material.

In the course of the hearing of this application, the claimant applied for an order that the redacted material received from the Consultee (i.e. the negative comments contained in that consultation response) should be disclosed. We refused that application and said that we would give reasons for that refusal in this judgment. The reason for the refusal was, in summary, that the application had been made far too late. Had the disclosure been ordered, further evidence would undoubtedly have been required on both sides, and a lengthy adjournment would have been inevitable. The claimant had argued the case on generic issues before the Administrative Court (described by Swift J at [8] in his detailed judgment as an “in-principle challenge”). The claimant had had plenty of time to make such an application and could not justify it being made so late.

Against that background, the claimant’s essential contentions are that: (i) a statutory consultee is not, as a matter of both law and fairness, at liberty to provide the JAC with comments about candidates from a broad and unlimited class of sub-consultees, and (ii) where negative comments are provided, they should not be relied upon by the JAC unless it has sought and obtained the consultee’s consent to disclose them to the candidate so that their response can be taken into account.

The first step in resolving the sustainability of these contentions turns on the proper meaning of three crucial legislative provisions. They are sections 88 and 139 of the Constitutional Reform Act 2005 (section 88 and section 139 respectively) and regulation 30 of the Judicial Appointment Regulations 2013/2192 (regulation 30).

Section 88(1) is headed “Selection process” and provides “On receiving a request the [JAC] must – (a) determine the selection process to be applied, (b) apply the selection process, and (c) make a selection accordingly”.

Section 139 provides as follows:

Regulation 30 provides as follows:

The claimant contends that regulation 30 does not allow the person consulted (the DSPJ in this case, but the Lady Chief Justice in other cases) to seek or utilise information obtained from sub-consultees. The words used in regulation 30(1)(b) are “a person”. The JAC submits that it is obviously to be implied that the person consulted can ask others who have experience of the candidates’ work. Moreover, a question was raised in the hearing as to whether the consultation contemplated by regulation 30 is as to who precisely is most suitable for the particular appointment in question, rather than a general wide-ranging consultation about the personal characteristics of individual candidates.

Ultimately, however, the central dispute related to the fairness of the way the JAC customarily deals with negative responses received from consultees about candidates. The fairness issues resolved into two areas. First, an issue as to how the JAC ought, in fairness, to deal with negative material produced by consultees. Secondly, an issue as to what candidates ought, again in fairness, to be told as to the consultation process.

As to the first issue (dealing with negative material), the JAC’s witness, Ms Brie Stevens-Hoare KC, a professional barrister member of the JAC, described that practice as follows: “I also understand that the Claimant considers that the JAC should seek consent from the consultees in this case to disclose the content of the statutory consultation, or a gist of it, to her. I understand the JAC’s practice in this regard is not to seek such consent, absent some exceptional set of circumstances”. The JAC changed its position somewhat in the course of argument (whilst continuing to defend the approach it adopted in this case), acknowledging that, in each case of negative consultation material, it had, in effect, at least some of the following discretionary choices : (i) disregarding the negative material, (ii) seeking to explore the negative material at interview without making the candidate aware of it or making any direct reference to it (the practice adopted by the JAC in this case), (iii) putting the gist of the negative material to the candidate, whilst preserving the confidentiality of the consultee and sub-consultees, (iv) seeking the consent of the consultee to disclose the negative material for the candidate’s comments and then doing so, if consent were granted, (v) even if such consent were refused, deciding to put the negative material to the candidate under section 139(4)(b). I shall refer to these five options as “the five options”. The JAC’s change of position reflected its acceptance, for the first time in oral argument, that section 139(5) was not, as it had previously argued, a free-standing provision requiring consent to disclosure in every case.

As to the second issue (informing candidates as to the consultation process), Ms Stevens-Hoare exhibited the “relevant parts of the information pack provided for candidates as part of the 2021/2022 Circuit Judge exercise”. That document included the following information about statutory consultation:

This formulation was followed by a link to “Information on statutory consultation”, which was not originally in evidence, but was provided by the JAC after the hearing. The information provided recited the substance of regulation 30 in greater detail, but, crucially, did not mention that sub-consultees would be asked about candidates, nor did it identify who those sub-consultees might be.

Ms Stevens-Hoare explained in her evidence that, at the time of this competition, the JAC had commissioned The Work Psychology Group (the WPG) to conduct an independent review of its statutory consultation process. The WPG reported on 1 March 2022, and the JAC “committed to introduce a revised approach to statutory consultation” from September 2022. New more detailed guidance was published in 2023 emphasising the need for objective evidence-based comments from both consultees and sub-consultees. The JAC submitted in oral argument that, as part of this process, the information given to candidates about statutory consultation had changed in 2023. It turned out, however, that the nature of that change was not apparent from the JAC’s original evidence. The evidence that the JAC filed after the hearing before us demonstrated the changes that had been made to the materials provided to candidates. The JAC added the following words to those I have set out at [14] above:

The second issue that I have described, therefore, turns, against that background, on whether it was fair or appropriate for the JAC not to explain the process of sub-consultation that it actually used to candidates including the claimant. The claimant argues that that was unfair, because “[t]he website and guidance material did not mention any other person or reveal that despite naming [the DSPJ] alone, and despite the regulations referring to Statutory Consultation as being from “a person”, how widely such comments would be in fact be sought or the procedure for doing so”. She understood that her application would be confidential. She said that: “Public statements by the [JAC] have in fact given the impression that candidates can be assured by the fact that the Statutory Consultation is limited in scope to those named in the relevant competition as consultees”. The JAC, on the other hand, argues, as I have said, that it must have been obvious that leadership judges would be sub-consulted. Ultimately, however, I understood the JAC, in oral argument, to accept that transparency about its processes was, at least, desirable. It regarded its recent information to candidates, following the WPG report, as an improvement on what candidates had been told at the time of the claimant’s competition.

In summary, therefore, it seems to me that, in order to resolve the claimant’s application, the court has to answer the following questions:

I have decided, for the reasons which follow, that the answers to these issues are as follows:

I shall deal in this judgment with the essential factual background, the law on fairness and article 8 and then the questions I have identified in sequence.

This summary of the facts is taken in part from my judgment on the application for permission to apply for Judicial Review. It does not repeat the facts that I have already stated.

The claimant practised in crime at the self-employed Bar and as in-house counsel for a firm of solicitors. In 2018 she was appointed as a salaried District Judge. She sat in Walsall County Court.

In early 2019, the claimant was upset by the workplace conduct of a more senior male judge (the Judge) at her court. The details do not matter, but in July 2019, the claimant made a formal complaint of bullying against the Judge under the applicable protocol. The claimant’s complaint was sent to the senior Presiding Judge of the Circuit. The claimant described the events that followed in this way:

After these events (which I shall call the “bullying incident”), the claimant applied in May 2021 to the JAC to become a Circuit Judge in both crime and civil. She provided all the documentation required from her and was supported by two independent assessors. She was invited for interview at the JAC’s selection day. Three interviews were held. Two were scenario-based, and the third was a competency-based panel interview. The civil panel carried out the civil scenario-based interview and the competency-based interview. The panels had before them evidence from the Consultee, Haddon-Cave LJ. Although the claimant did not recall being asked anything of a negative nature, it appears from the transcript of the interview that she was actually asked some detailed questions under the heading of the “Working and Communication with Others” competency. The claimant’s interviews took place on 26 November 2021. The Chair of the panel started that section of the interview by saying that she was interested in the claimant’s ability to work and communicate with others, asking her to speak about a time when she had had to assert her authority in a work environment. She described an incident prior to the Covid pandemic lockdown, when she had received confidential information from a senior coroner about the likelihood of mass fatalities, which the coroner had obtained from a government body on which he sat. On the day of lockdown, the claimant, as the only resident judge present at her court, decided to adopt the precautionary procedures recommended to her, such as chair spacing in court and opening empty courts. Senior management in HMCTS complained to her that she had no authority to make those changes and said that they should be reversed. The claimant explained her dilemma to the panel on the basis that she could not tell HMCTS how she knew the precautions were needed. She said that she told HMCTS that they should “refer it up the line, but for the time being this is what we’re doing with my court”. The HMCTS representative was not happy. The Chair asked the claimant whether she could “[h]elp [the panel] to understand how upset she was, and what . . . what she said to you and what you said to her?” The claimant then explained that the HMCTS person had “gone mad”, but the claimant had stood her ground firmly and insisted on continuing with the measures she had implemented. The claimant had ended by saying: “I am doing this, and I will take responsibility for it”.

Later in the interview, the Chair returned to what might be referred to as the “Covid incident” and asked: “Was that ever escalated?”. The claimant said it had not been escalated beyond an email saying she had no authority to take the steps she had, but reiterated that it was an extreme situation and she stood by what she had done.

After the interviews, the panels submitted their proposal paper to the SCC. It included the following passages that are particularly relevant to this application:

Ms Stevens-Hoare’s evidence described the selection process affecting the claimant in detail. She said that, when she read the proposal paper concluding that the claimant had provided sufficient evidence in the crime interview for “Working and Communicating with Others”, she thought that the “report itself made it clear that the evidence provided included negative evidence in one incidence (with a juror) and the evidence from the sentencing element of the exercise was not sufficient to redress that negative evidence”. She was, therefore, “concerned the evidence provided in the report did not support the conclusion reached”. The claimant complains that this evidence is at odds with Ms Stevens-Hoare’s approval of the proposal paper itself. This is not a dispute that, in my view, either can or needs to be resolved. Ms Stevens-Hoare plainly had and raised concerns at the SCC. The point at which those concerns arose is immaterial.

So far as the report in the proposal paper in relation to the civil interview was concerned, Ms Stevens-Hoare said that she thought that “whilst [there was] positive evidence related to important elements of “Working and Communicating with Others”, it did nothing to redress the failings evidenced by the negative evidence”.

Ms Stevens-Hoare’s evidence about the Covid incident was as follows:

Ms Stevens-Hoare described the process she went through in relation to the Consultee’s comments as follows:

Ms Stevens-Hoare described in her evidence the way in which the SCC made its decision about the claimant. She said that she had noted, when reading the material before the SCC, that “negative evidence noted by the panels at the assessment day had parallels in the statutory consultation material - that is that the [panels] had identified similar issues under that competence to those identified in the statutory consultation response”. When she went back to the material before the SCC, she “concluded that there was insufficient evidence from the panel in their report to support the assessment of C because there was negative evidence which was not sufficiently addressed or countered by a volume of good or positive evidence”. Ms Stevens-Hoare then decided to “express those concerns and ask the other Commissioners present to consider the proposed recommendation of the Claimant”, which is what she did. The other Commissioners (11, in total, were present at the SCC meeting) agreed with her concern about the panel’s assessment of the claimant as a “C” grade for “Working and Communicating with Others”. The main focus of that discussion was not the statutory consultation. The discussion focused on (i) the sufficiency of the evidence identified by the panel, (ii) the negative evidence identified by the panel in the proposal paper, and (iii) the failure of the evidence as a whole to amount to sufficient good evidence to justify a “C” grade for the “Working and Communicating with Others” competence. On that basis, the SCC assessed the claimant as a “D” grade (insufficient evidence) for that competence.

Ms Stevens-Hoare’s evidence was that “[t]he most important factor in that assessment was … the negative evidence observed by the panel at selection day”. She also confirmed that she had no knowledge at the time of the selection process of the complaint made by the claimant against the Judge, and that complaint was “not mentioned by anyone in the course of the SCC discussions”.

Ms Stevens-Hoare explained that 29 candidates were selected for crime in respect of 45 vacancies. Had the claimant not been downgraded, she would, therefore, have been recommended for appointment in crime. She would not have been recommended in civil, because she was 15^th in the merit order and there were only 9 vacancies. I have already set out the relevant minutes of the SCC meeting recording its decision about the claimant at [3] above.

On 4 April 2022, the JAC informed the appellant that she had not been successful in the competition. She sought and received feedback in relation to her application in the civil jurisdiction in a letter from the JAC dated 6 May 2022 (the first feedback letter). The first feedback letter quoted extensively from the proposal paper. The quotation concluded with “Overall, the panel concluded that the candidate is selectable”. The first feedback letter then continued by saying that: “[u]nfortunately, due to the strength of the competition, with other candidates providing stronger evidence against the competencies, you were not selected for this role. In summary, the panel concluded that the evidence you provided against the competencies was not as strong as that of other candidates, in what was a very competitive field”.

Shortly after the 6 May 2022 letter, the appellant received a memorandum from the Circuit Presiders encouraging people to apply for Circuit Judge appointments due to the limited number recruited. Since this conflicted with her feedback, the appellant sought clarification from the JAC.

On 24 May 2022 the JAC sent a second feedback letter which encompassed crime, civil and the competencies (the second feedback letter). Again, the second feedback letter quoted extensively from the proposal paper, giving mixed impressions about whether the claimant had satisfied the panels as to the “Working and Communicating with Others” competency. It is not necessary to analyse the second feedback letter in detail. Unhelpfully, however, considering the conclusions to which the second feedback letter came, it included: (i) an overall summary (crime), which concluded by saying that “[the claimant] was awarded sufficient grades for all competencies”, (ii) a commentary on the “situational questions (civil)”, which appeared to pass the claimant on the “Working and Communicating with Others” competency, apart from a criticism about the use of the inaccessible word “henceforth”, (iii) under the heading “competency based interview”, a description of the Covid incident as a “strong example” of “Working and Communicating with Others”, and (iv) under the same heading, a passage explaining that: “overall, the panel decided that sufficient evidence had been provided” in relation to that competency. It was only when the second feedback letter reached the heading “overall summary (civil)” that the reasons for her non-selection emerged. I am bound to say, however, that even at that stage the letter lacked necessary clarity, as follows:

In response to the claimant’s first email query about the second feedback letter, the JAC said this on 25 May 2022:

The claimant responded quickly on 25 May 2022 pointing out the confusion that the two feedback letters had caused. I include a significant extract from the claimant’s email because her confusion is both palpable and entirely justified. She said first that the starting point was that feedback was “designed to assist a candidate who is not successful to reflect on where they went wrong and adjust their approach in the future”. She then recited the inconsistent information from the first and second feedback letters, and continued:

A week later, on 31 May 2022, the claimant emailed the JAC again to say that that she had become aware that “the JAC have utilised ‘soundings’ during the course of this selection exercise. If so, then there are clearly questions that arise in relation to fairness, equality and transparency”.

On 8 June 2022, the JAC wrote to the claimant offering “sincere apologies” for the level of service that the claimant had received, and seeking to explain what had actually occurred. The thrust of the claimant’s initial complaint concerned the use that had been made of the statutory consultation, and the claimant’s suspicion that it concerned the bullying incident. It only became apparent that the negative material in the statutory consultation did not concern the bullying incident, when Ms Stevens-Hoare’s evidence was produced after this court had granted the claimant permission to apply for judicial review.

On 13 June 2022, the claimant’s solicitors sent a letter before action to the JAC, to which the JAC responded. These proceedings followed on 1 July 2022.

On 30 March 2023, Lang J refused permission to apply for Judicial Review on the basis that the claimant’s claims were unarguable. On 6 December 2023, after a day-long oral hearing, Swift J refused permission to apply for Judicial Review on the basis that none of the grounds put forward was arguable. He did, however, describe the JAC’s treatment of the claimant as “very unfortunate indeed”, a summation with which I entirely agree.

On 13 June 2024, the same constitution of the Court of Appeal as has heard the substantive application granted the claimant permission to bring Judicial Review proceedings against the JAC in respect of its decision not to recommend her for appointment as a circuit judge. We ordered that the claim should be retained in the Court of Appeal under CPR Part 52.8(6), that the appellant should file, by 27 June 2024, final complete re-amended grounds of challenge and details of the remedies sought, and that once the JAC had filed detailed grounds of defence and evidence, that the appellant should file evidence in reply within 21 days. These procedural orders were relevant to the application that the claimant made at the hearing for disclosure of the statutory consultation. It must have been obvious to her after those orders were made that she had to marshal all the evidence she needed within strict time limits.

Finally, in the chronology, the JAC’s response to the WPG report (which related, it will be recalled, to the JAC’s practices in relation to statutory consultation) included in 2023 the following relevant commitments:

I have recited the history of the JAC’s dealings with the claimant after the competition in detail. That treatment does not, in the result, underpin the claimant’s substantive claims. It does, however, explain how the claimant came to believe, genuinely I think, that the negative consultation material concerned the bullying incident, when it probably did not. All that could, so easily, have been explained to the claimant long before Ms Stevens-Hoare’s evidence was filed. It may be hoped, however, that the JAC will be able, in future, to ensure that feedback given to candidates is accurate and complete, and not, as it was in this case, confused and misleading.

In Reg. v. Home Secretary, Ex p. Doody [1994] 1 AC 531 (Doody), Lord Mustill considered what fairness demanded in relation to a scheme for the review of the period which a prisoner would serve by way of a mandatory life sentence. The House of Lords decided that, in fairness, the Secretary of State had, not only to allow the prisoner to make representations, but also had first to inform him of the period recommended by the judiciary. Lord Mustill said this at pages 560-561:

In my judgment, this passage still encapsulates the principles that this court should apply. I have highlighted the most relevant passages from Lord Mustill’s speech. These principles were referred to by the Court of Appeal in an immigration context in R (Talpada) v. Secretary of State for the Home Department [2018] EWCA Civ 841 (Talpada). In Talpada, Singh LJ (in agreement with both Hallett and Underhill LJJ) helpfully explained the difference between procedural and substantive unfairness, the need to distinguish between the two, and in the case of substantive unfairness, the need to avoid what I might call judicial overreach (see, in particular, [64]-[65]). I will return to Singh LJ’s judgment when I consider the question of remedies in this case. I say, at once, however, that his judgment, read in its entirety, provides important legal context for what we have to decide. In R (Segalov) v. Chief Constable of Sussex Police [2018] EWHC 3187 (Admin), a Divisional Court applied Lord Mustill’s principles in Doody, holding that a journalist ought to have been given the gist of the complaints made against him to enable him to make submissions before the police decided to exclude him from the Labour conference.

Article 8 provides as follows:

In the course of oral submissions, I asked Ms Newbegin, who argued the article 8 points for the claimant, what article 8 added to the arguments advanced under domestic law. In response, she relied on Volkov v. Ukraine [2013] 57 EHRR 1, where the European Court of Human Rights (ECtHR) had endorsed at [165]-[167] the parties’ agreement that the dismissal of a judge from his office in the Supreme Court engaged his article 8 rights, notwithstanding that the relationship was of a business or professional nature. In that case, the ECtHR said this about whether the interference in question satisfied the conditions of Article 8(2) at [169]-[171]:

The claimant’s submission in this regard can be taken from her skeleton as follows:

The Grand Chamber of the ECtHR considered the applicability of article 8 to employment-related scenarios comprehensively in Denisov v. Ukraine (Application No 76639/11), 25.09.18 (Denisov) where article 8 was held not, on the facts, to be engaged when a judge was dismissed as President of the Court of Appeal, though not removed from office. The Grand Chamber’s analysis at [100]-[108] of its judgment is valuable. The JAC argued that the claimant’s case was to be distinguished from Volkov and Denisov because she was seeking a new appointment, rather than being removed from any office.

I do not think we need to resolve that argument in this case. I take the view that article 8 does not add anything to domestic law, on the facts and submissions as they actually appeared at the end of the oral argument. I accept, however, that article 8 might have been relevant had the argument not developed as it did in the hearing. In the circumstances, therefore, I need say no more about the law relating to article 8.

For convenience I will recite regulation 30(1) again as follows:

There is nothing in these formulations that indicate one way or another whether the “person” to be consulted is to be permitted to seek assistance from sub-consultees. That issue might, however, be informed by the purpose for which consultation is envisaged. Underhill LJ suggested in argument that the final words of regulation 30(1)(b) identifying the consultee as someone “who has held the office for which a selection is to be made or has other relevant experience” pointed towards the consultation being about what the office demanded, rather than a general wide-ranging consultation about the personal characteristics of individual candidates. The JAC has not, however, consulted specifically about the demands of the office, either before 2013 when regulation 30 was put into its current form, or afterwards. It has always used regulation 30 as its platform for asking the consultee for evidence-based comments about the competencies of the candidates for the office.

In my judgment, regulation 30 is not a felicitous foundation for the kind of consultation undertaken by the JAC. But it does not seem to me that the consultation process adopted by the JAC is, in any sense, unlawful. Section 88(1) expressly allows the JAC to determine “the selection process to be applied” and to apply that process in each case. It is obliged to consult a particular consultee, under regulation 30, which is what it does. Regulation 30 does not specify what the consultee is to be asked. Even if regulation 30 contemplates consulting a person with experience of the office in question, that does not limit the questions that that person can be asked. There is, in my judgment, no warrant for construing regulation 30 as limiting the kind of selection process that the JAC can adopt under section 88.

Accordingly, as a matter of statutory construction, it seems to me that neither section 88 nor regulation 30 requires that the statutory consultee should provide comments without reference to any sub-consultees or other third parties. I reach that conclusion without regard to the practical arguments advanced on both sides about the desirability or fairness of sub-consultation. The fact that there is no statutory inhibition on sub-consultation does not, of course, answer the fairness questions raised by the claimant, to which I shall now turn.

On the construction of section 88 and regulation 30 that I have adopted, it is obviously not unlawful for the JAC to adopt a selection process that involves asking a consultee to procure evidence-based comments about candidates from other judges or third parties who might have experience of their work.

There is much force in the argument advanced by the JAC that any other consultation process would be undesirable because many candidates would receive no comments, even favourable ones. It must also be recalled at every stage of this debate that section 88 and regulation 30 apply as much to selection processes where candidates are solicitors and barristers, as it does to selection processes where candidates are serving judges (whether salaried or fee-paid). It is inconceivable that either the Lady Chief Justice (referred to in regulation 30(1)(a) in relation to High Court appointments) or “a person who has held the office for which a selection is to be made or has other relevant experience” (referred to in regulation 30(1)(b) in relation to other appointments) could have personal experience of all the candidates in every competition.

I shall deal with the question of the fairness of the process of sub-consultation actually adopted by the JAC after I have considered the proper construction of section 139.

As I have already indicated, there was a measure of common ground on this issue by the end of the hearing.

Section 139 is headed “[c]onfidentiality” and appears as the first section in Part 7 of the Constitutional Reform Act 2005 under the heading “General”. It therefore applies to Part 4 of the Act, which relates to judicial appointments and discipline.

The scheme of section 139 is to provide at section 139(1) that confidential information must not be disclosed “except with lawful authority”. Section 139(3) makes clear that information is confidential if it relates to an identified or identifiable individual. Then section 139(4) identifies 5 situations in which confidential information about an individual can be disclosed with lawful authority. The five situations are important. They may be summarised as follows.

The first situation relates to disclosure “with the consent of each person who is a subject of the information”, but section 139(4)(a) makes it clear that that is “subject to [section 139(5)]”. Section 139(5) makes it clear that information given by one individual (A) about another (B) (a) is information that relatesto (under section 139(3)) both individuals, and (b) must not be disclosed to B without A’s consent. Thus, in the situation with which we are concerned, each of the consultee and the sub-consultees are individuals (who gave information about the claimant) and whose consent is required before there can be lawful authority under section 139(4)(a) for disclosure of the information.

The second situation in section 139(4)(b) allows lawful authority for disclosure where such disclosure is “for (and is necessary for) the exercise by any person of functions under a relevant provision”. It is obvious that the JAC would be exercising its functions under section 88 if it disclosed confidential information as part of the selection process. So, the questions in this context are: (a) whether section 139(4)(b) is also subject to the consent provision in section 139(5), and (b) when is it “necessary” for the JAC to disclose such information for the exercise of its functions. I will return to those questions.

The third situation in section 139(4)(c) allows lawful authority for disclosure where such disclosure is for (and is necessary for) the exercise of functions under section 11(3A) of the Senior Courts Act 1981 or a decision whether to exercise them. Section 11(3A) relates to the Lord Chancellor recommending to the Sovereign the removal of a senior judge on a motion of both Houses of Parliament. It would make no sense for section 139(5), which prevents disclosure of confidential information to the person it is about without the provider’s consent, to apply to section 139(4)(c), which simply makes it lawful for confidential information obtained about a judge to be used, where necessary, by the Lord Chancellor in considering whether to recommend that judge’s dismissal.

The fourth situation in section 139(4)(d) allows lawful authority for disclosure where such disclosure is for (and is necessary for) the exercise of functions under section 108 of the Constitutional Reform Act 2005 or a decision whether to exercise them. Section 108 relates to the disciplinary powers of the Lord Chancellor and the Lady Chief Justice over judges. Once again, it would make no sense for section 139(5), which prevents disclosure of confidential information to the person it is about without the provider’s consent, to apply to section 139(4)(d), which simply makes it lawful for confidential information obtained about a judge to be used, where necessary, by the Lord Chancellor and the Lady Chief Justice in considering whether to discipline them.

The fifth situation in section 139(4)(e) allows lawful authority for disclosure where such disclosure is required, under rules of court or a court order, for the purposes of legal proceedings. Yet again, it is hard to see the relevance of section 139(5) to this provision. Section 139(4)(e) preserves the right of the court to order disclosure of confidential information for the purposes of legal proceedings.

In my judgment, sections 139(4)(b)-(e) concern situations to which section 139(5) has no real relevance. It could be said that section 139(5)(a), providing for information given by one person about another to be information relating to them both, is of general application. But that is not what we have to decide. It is plain, in my judgment, as the JAC ultimately accepted, that section 139(4)(b) is not materially qualified by section 139(5). In other words, the person providing the information does not have to provide their consent before it can be lawful for the JAC to disclose negative material to the candidate for the purposes of the selection procedure where it is necessary to do so.

I return, then, the questions I posed at [64] above. Section 139(4)(b) is not, in my judgment subject to the consent provision in section 139(5)(b). The second question was as to when it would be “necessary” for the JAC to disclose such information for the exercise of its functions. I am not sure that it is helpful for us to try to give an exhaustive answer to that question. The JAC has suggested that disclosure might be permissible in “exceptional circumstances”. I am not sure that those words provide a helpful addition to “necessary”. The provision is far broader than this case, and I would not want to fetter its application. On the facts of our case, I can certainly envisage circumstances in which a consultee refused consent to the disclosure of negative material to a candidate for that candidate’s comments. In that situation, it seems to me that the JAC would have to decide whether, in all the circumstances of the particular case including the nature of the information and its importance to the appointment process, disclosure to the candidate was indeed necessary. That is the fifth of the five options that I mentioned earlier (see [13] above).

My conclusion in this regard is that the application of section 139 to this situation is not complex. Section 139 simply provides for three relevant options in relation to disclosure of negative material to candidates. Such material can be disclosed to the candidate (a) with the consent of the consultee and any relevant sub-consultee under section 139(4)(a), (b) without the consent of the consultees if the JAC determines that it is necessary to do so for the purposes of the selection exercise under section 139(4)(b), and (c) without the consent of the consultees by an order of the court where required for the purposes of legal proceedings under section 139(4)(e).

Section 139 does not, of course, prescribe how the JAC is to deal with negative material in the context of a selection exercise. It seems obvious to me, however, that each of the five options identified above is available to the JAC. It may, in its discretion, when in receipt of negative material about a candidate: (i) disregard the negative material, (ii) seek to explore the negative material at interview without making the candidate aware of it or making any direct reference to it, (iii) put the gist of the negative material to the candidate, whilst preserving the confidentiality of the consultee and sub-consultees (a process which will not always be possible), (iv) seek the consent of the consultee to disclose the negative material for the candidate’s comments and then do so, if consent were granted, or (v) even if such consent were refused, decide to put the negative material to the candidate under section 139(4)(b). Each of the five options would be lawful, in an appropriate case.

As mentioned at [13] above, the JAC’s practice was not to seek consent from the consultee to disclose negative consultation material to the candidate “absent some exceptional set of circumstances”. The JAC seeks to defend that practice on the basis that any other would make the selection exercises unwieldy and difficult. I do not accept that argument. It seems to me that the JAC has, in fairness, to consider whether and how it should take negative material into consideration. Doody makes that clear. In reality, it obviously does that now. As we see from the facts of this case, a decision was taken by the panels to explore the negative material about the claimant provided in relation to the “Working and Communicating with Others” competence. Effectively, the JAC adopted the second option I have described. Those questions elicited a detailed discussion about the Covid incident, which seems to have been important in the decision-making process. It could, as the claimant submits, have followed other options, including asking the Consultee for consent to put the negative material directly to the claimant.

In my judgment, the JAC was not entitled to adopt a practice or a policy of only seeking consent from the consultee to disclose negative consultation material to the candidate in an exceptional set of circumstances. One can envisage many circumstances in which each of the five options would be appropriate. No doubt, options one and two will be, by far, the most commonly adopted, but I do not think the JAC should fetter its discretion in advance by adopting the binary practice that Ms Stevens-Hoare described in her evidence. It is not any more burdensome for the JAC to have to consider the five options in every case. They already have to decide how to deal with negative material. It is just a question of being aware of the options and considering which is appropriate in the circumstances.

This issue concerns the way in which the JAC actually made use of the negative material it received in relation to the claimant. As I have already said, I do not see how this issue can be resolved without seeing the negative material in question. I have deliberately described the process that the JAC followed in some detail at [24]-[33] above.

We could speculate about what the negative material was about. We know it was not about the bullying incident, and it is plausible to imagine that it concerned the Covid incident. But we do not know, and no application was made early enough to make it possible to find out in time for the hearing of this application. In these circumstances, it would simply be unfair and inappropriate for us to decide, in ignorance of what the negative material actually said about the claimant, whether the JAC’s actual use of it was unlawful, unfair or in violation of her article 8 rights.

That said, I think it is worth commenting that the evidence we have seen does not seem to support the proposition that the process adopted by the JAC in this case was obviously unfair. The Chair of the panel had clearly decided specifically to explore the “Working and Communicating with Others” competence without referring expressly to what had been said by the Consultee. She asked the claimant to speak about a time when she had had to assert her authority in a work environment. That took the claimant directly to the Covid incident. If the negative material was about the Covid incident (which I re-emphasise we do not know) then that was an apt way of finding out what the claimant had to say about it. It is true that the Chair did not put to the claimant that her description was not a good example of the “Working and Communicating with Others” competence, but at least, as I say, the claimant had an opportunity to tell her side of that story.

It is not clear from Ms Stevens-Hoare’s evidence or the redacted minutes of the SCC meeting precisely what negative evidence was discussed in relation to the “Working and Communicating with Others” competence, but it is at least possible that it centred on the Covid incident. It is, however, clear from the minutes that the decision was based on both the negative material and the “similar issues” identified by the panel. The negative material did not, it is worth reiterating, concern the bullying incident as the claimant feared.

I do not find it necessary to go further in the analysis. It seems to me that, had the JAC decided from the five options to pursue the second option in this case, it would not, on the evidence we have been able to see, have been an unreasonable or unfair approach.

I would say two more things under this heading. First, as I have explained, sub-consultation is not unlawful. But negative material must be used fairly, and the JAC has to decide in each case between (at least) the five options I have enunciated. There may be other options in other circumstances – we cannot predict the future. Secondly, it should be made clear that it is not inappropriate for the SCC to decide to change the grading recommended by the panels. That is its job in an appropriate case. The facts of this case provide a good example. The panels seem to have regarded the Covid incident as a strong example of the claimant’s ability to work and communicate with others. At the least, there could be two sustainable views about whether it was actually a strong example. The SCC seems to have thought it was not, and that it was rather a negative example. We do not know enough to decide either way. It is, however, worth commenting that the SCC would have been entitled to take its own view (even if different from the panels) as to the quality of the evidence that the claimant had demonstrated, taken alongside the negative material, in relation to this competence. That is particularly so if, in fact, the Covid incident was explored because it was the subject of the negative material.

In conclusion, therefore, I do not think we can decide, for the reasons I have given, whether the JAC’s actual use of the negative material concerning the claimant was in fact unfair, unlawful or in violation of her article 8 rights.

I have already described the factual background to this issue at [14]-[17] above. In essence, in this case, the JAC did not inform the claimant in advance that comments about her competencies would be sought from sub-consultees, including her leadership judges. The claimant argued that it was crucial to her to know that this would happen, particularly because of the bullying incident. The selection exercise was, therefore, she submits, unfair. Two things are important to note immediately. The JAC’s practice has now changed, and candidates in current competitions are able to see the guidance given to consultees which makes clear that information may be sought from sub-consultees. Secondly, this is an allegation of substantive, not procedural, unfairness. Procedural unfairness, as Singh LJ explained at [57] of Talpada, is about natural justice, bias or the opportunity to be heard. It may be noted that the allegation dealt with above (to the effect that the negative material was not put to the claimant) is a classic example of an allegation of procedural unfairness. Singh LJ explained the parameters of substantive unfairness at [59]-[65] of Talpada. The substantive allegation here is, in effect, that the claimant had a legitimate expectation that she would be told if anyone other than the Consultee were to be asked for comments about her. She suffered detriment as a result, because she went through a competition she might otherwise not have entered, and because negative comments from her leadership judges were taken into account in the determination of her application. As Singh LJ notes at [61] and [64] in Talpada, only substantive unfairness that amounts to an abuse of power is justiciable, and the court’s role is principally to “correct errors of law made by public authorities and ensure that fair procedures have been complied with”.

On the facts of this case, it is now accepted that it is desirable for candidates to be told that Consultees will be permitted to provide comments received from sub-consultees. I would entirely endorse that approach. Moreover, I would add that I do not think it is sufficient for the JAC to refer to the sub-consultation process merely by providing a link to “Guidance provided to the statutory consultee”. In fairness, candidates should be told, in general terms at least how the sub-consultation process works and what categories of people may be sub-consulted.

In my judgment, therefore, the information process operated by the JAC at the time of this competition, which made no mention of sub-consultation in its pre-application materials, was neither appropriate nor fair. It is not an answer to this point to say that candidates “ought to know” that sub-consultation would take place, or that the process was widely understood or even that it was obvious that the Consultee could not know everyone, so would have to ask others. As the JAC itself said in its “Key Messages” document for 2022: “our processes are fair and transparent – every aspect of the process is clearly outlined on our website”. The sub-consultation part of the process was not outlined, clearly, or at all, on the JAC’s website in advance of this competition. It should have been.

As will appear, I do not think that this conclusion means that the JAC’s decision not to select the claimant can or should be overturned. Once again, Singh LJ explains the position succinctly at [65]-[66] of Talpada as follows:

The unfair failure to inform candidates in advance about the sub-consultation process was wrong and has already been partially corrected. But it comes nowhere near the kind of extreme case in which the court should, in my judgment, intervene to quash the decision made.

As I have explained, the JAC misunderstood the correct approach to dealing with negative material provided by consultees. I would be prepared to declare, in effect, that the JAC’s practice of only considering in “some exceptional circumstances” options three, four or five (see [13] above), by which negative material might be disclosed to the candidate for their comments, was an inappropriate fetter on its discretion. I suggest an appropriate formulation at [88(ii)] below. It has, however, not been shown that that practice had an adverse effect on the claimant in this case.

The JAC also failed to explain its sub-consultation process in advance to the claimant and other candidates in the 2021/2022 circuit judge competition, as it should have done. I would not be prepared to quash the decision affecting the claimant that followed, but I would be prepared to declare that the JAC ought, as a matter of fairness, to explain its sub-consultation process in advance to candidates.

For the reasons I have given, this application will be allowed in part. I would declare (subject to any submissions that may be made by the parties) that:

As I have made clear at [48]-[52] above, I do not think that the claimant’s reliance on article 8 adds anything to her common law claims in this case.

I respectfully agree with the Master of the Rolls’ judgment and with his dispositive reasoning. I only wish to add something about the two statutory provisions which were (at least until the hearing before us) relied on by the JAC as underpinning its practices as regards consultation and confidentiality – that is, regulation 30 of the Judicial Appointments Regulations 2013 and section 139 of the Constitutional Reform Act 2005.

It may not at first sight seem surprising that the JAC’s position, both in own thinking and in its case in these proceedings, was that consultation exercises of the kind with which we are concerned – that is, the collection of information about the qualities of multiple candidates from “sub-consultees” who know their work – are conducted pursuant to regulation 30: it is, after all, headed “Consultation”. But that first impression is very hard to reconcile with the actual content of the regulation. I can summarise the difficulties as follows.

The starting-point is that on a straightforward reading regulation 30 appears to be directed at consultation only with single individuals, namely:

It might perhaps be possible, despite those difficulties, to construe regulation 30 as conferring a power to conduct an information-gathering exercise of that kind if there were strong contextual considerations indicating that that was the legislative intention. As to that, regulation 30 originated in an equivalent, though not identical, provision in section 88 (3) of the 2005 Act itself (which was repealed with effect from the coming into force of the Regulations); but we were not referred to any materials that shed light on the purpose either of that original provision or of the version in which it was re-enacted in 2013. In the absence of such material, I am frankly uncertain what kind of consultation, and for what purpose, the regulation or its predecessor provision envisaged; but I am not persuaded that it provides any statutory foundation for the kind of consultation exercise that we are concerned with in this case.

It does not, however, follow that no statutory basis for such consultation exists. On the contrary, I agree with the Master of the Rolls that it can readily be found in section 88 (1) of the 2005 Act. The phrase “selection process” is clearly capable of covering an exercise to obtain information and opinions about the qualities of candidates from persons who have personal experience of their work. Mr Collins submitted that such a process was unnecessary and that the JAC could properly proceed on the basis of the references which the candidate was required to supply and its own assessment. That seems to me highly debatable, but all that matters for present purposes is that the JAC’s view that such an exercise is valuable is on any view a reasonable one.

I have thought it right to give my own analysis of the effect of regulation 30 because I would go rather further than the Master of the Rolls in holding that it affords no statutory basis for the kind of consultation exercise carried out by the JAC in the present case. But since we are agreed that section 88 (1) supplies an alternative basis that does not affect my agreement with him on the lawfulness of such exercises.

The question about section 139 is how the prohibition on (non-consensual) disclosure in subsection (5) (b) relates to the other provisions of the section. Until the hearing the position of the JAC was that it was “freestanding”, and in particular that it operated irrespective of the provisions of subsection (4). As the Master of the Rolls demonstrates, that construction would produce results which Parliament cannot have intended: most obviously, it would be extraordinary if the prohibition would apply even if a court believed that disclosure was necessary in the interests of legal proceedings (head (e)). It was, as I understood it, because of those consequences that Sir James Eadie abandoned the position adopted in his skeleton argument. However, I think it worth explaining explain how that result is compatible with the language of the section.

I start by identifying the structure of subsections (1)-(4). This can be analysed as follows:

As to subsection (5) (a), it is clear that its effect is to expand, or in any event clarify, the reference in subsection (3) to an individual to whom the information “relates”. That was necessary because as a matter of ordinary language information would (or at least might) only be understood to “relate to” a person, so that they are the “subject” of it, if it is information about them. But subsection (5) (a) makes it clear that in this context information is to be taken as “relating to” not only the person who it is about but also the person (if identifiable) who gives it (“the source”); and it follows that both are to be treated as falling within the terms of subsection (3) and thus, however counter-intuitively, as being “subjects” of the information. Although the prohibition is framed in terms of the disclosure of the information (which includes “opinions”) the essential purpose is evidently to protect the identity of the source, who will be identifiable if the information is disclosed.

As for subsection (5) (b), this prohibits the disclosure to the person who the information is about of the identity of the person who gave it (though arguably redundantly since subsection (1) would anyway do the work once the source is brought into the definition in subsection (3)). But the foregoing analysis of the structure of section 139 shows that it must be subject to subsection (4): since subsection (5) feeds, via subsection (3), into the meaning of “confidential information” in subsection (1), it must be subject to the exception for lawful authority which is provided for in it.

That is intended to do no more than spell out why Sir James’s concession is consistent with the drafting of section 139. It follows, as the Master of the Rolls says, that disclosure, without their consent, of the identity of the source of information about the candidate is in principle permitted in the circumstances identified in section 139 (4) (b) – i.e. where it is necessary for the purpose of the exercise by the JAC of its functions in the selection of judges. However, the fact remains that section 139 (5) means that consultees can expect their identity to be kept confidential unless the JAC believes that it is necessary to disclose it (or one of the other heads in subsection (4) applies). That point is worth making because Mr Collins submitted that part of the purpose of the introduction of the new system for judicial appointments under the 2005 Act was to do away with the old system of “secret soundings” altogether. That overstates the position. The enactment of section 139 (5), which maintains at least a starting-point that the identity of the sources of information about candidates should not be disclosed, shows that Parliament appreciated the value of confidentiality, in the context of a more professional and transparent selection process, even though it could not be assured in all cases. As the Master of the Rolls identifies, there are a number of ways in which the JAC may, depending on the particular circumstances, maintain the confidentiality of a source without compromising fairness.

I agree with the judgment of the Master of the Rolls. Save that I prefer the Master of the Rolls’s conclusions on Regulation 30 at paragraphs 54-56 to those of Lord Justice Underhill at paragraphs 92-95, I also agree with Lord Justice Underhill’s judgment.