Court of Appeal Says No to Secret Soundings in Judicial Appointments

In a historic first ever landmark case in the Court of Appeal on secret soundings in judicial appointments, the Court of Appeal has said there should be no more secret soundings from anonymous people.

The case brought by a serving district judge, Katie Thomas, who had essentially applied for a promotion to become a circuit judge. Thomas went through the entire interview process successfully and was even told that she was going to be appointed. However, in a surprising turn of events, after secret soundings, obtained by the JAC, she was told that she was not eligible to be appointed.

What are secret Soundings

Secret Soundings are basically, where people have been anonymously consulted by the powers that be, on their view of a given candidate. In practical terms, this means that any candidate, who having gone through the assessments to be deemed as worthy of being appointed as a judge, could be refused an appointment because of not being popular, or liked.

The Case Before the 4A Law Intervention

Before 4A Law decided to intervene, Thomas had been given limited permission to have a judicial review hearing, in the Court of Appeal, by the Master of the Rolls, Sir Geoffrey Vos.

1. He noted the arguments of the JAC put forward by Sir James Eadie, that disclosing an anonymous consultation (secret sounding) was not even arguably a requirement of fairness (paragraph 18 of the Permission to Appeal).
2. It was in the public interest for the fairness of the JAC’s procedure to be examined at a full hearing.
3. It is arguable that there are circumstances in which the JAC may be obliged as a matter of fairness to seek the consent of consultees to disclosure of what they have said, or to give candidates the gist of the comments without identifying the source.
4. Section 139(4)(a) and (5) provide for confidentiality in the absence of the consent of the person providing the information.
5. Heregarded the challenge to the approach adopted under Regulation 30 to be sufficiently closely connected to the fairness of the process as a whole to make it desirable to allow this ground to proceed.

The Case After the 4A Law Intervention

4A Law instructed Arfan Khan (lead Counsel) and Tahir Ashraf (junior Counsel) to obtain permission to intervene in the case at the Court of Appeal who made written submissions.

The JAC instructed the government legal department (GLD), who instructed Sir James Eadie, Robert Moretto and Natasha Simonsen to oppose the intervention.

Permission to intervene was granted by Lord Justice Underhill (Vice President of the Court of Appeal, Civil Division) on 4A Law’s Counsel’s written submissions on points of public importance on the correct construction of the statutory scheme (section 139) exemptions. Particularly in the context of fairness in the use of secret soundings in the appointment of the Judiciary in the United Kingdom.

The Order granting permission also allowed 4A Law to make oral submissions if called upon by the Court of Appeal.

The Hearing

The hearing at the Court of Appeal was before Sir Geoffrey Vos Master of The Rolls, Lord Justice Underhill and Lady Justice Nicola Davies

Along with already provided written submissions, lead Counsel Arfan Khan made oral submissions on the correct construction of the statutory scheme and procedural fairness

1. contending that adverse consultations are disclosable in the statutory scheme’s exemptions in s139 CRA.
2. Applying cases such as R v Secretary of State for the Home Department Ex p Doody [1994] 1 AC 531, the requirement of fairness had not been met, because Thomas had no opportunity to respond to the secret information received even though it was held against her.
3. Objective fairness required for there to have been an opportunity to address the reversal of the original panel decision instead of obliquely phrased questions concerning competencies, which the panel had already held that the judge had satisfied.
4. It is doubtful that Regulation 30 allows a statutory consultee, to conduct their own wide-ranging consultation (secret soundings) with third parties, regarding dismissed complaints. In any event, the wording of regulation 30 is restrictive in the context of the statutory scheme and subject to the implied requirement of fairness.

Court of Appeal Decision

The Court of Appeal refused to quash the JAC’s decision in respect of the claimant, it said it would make three declarations that:

1. Section 139(5) of the Constitutional Reform Act 2005 does not preclude disclosure of information given by one identified or identifiable individual (A) about another (B) where any of the circumstances specified under section 139(4) apply.
2. Where the JAC is considering whether to disclose such information, or the gist of it, to B for the purposes of its functions under Part 4 of the Constitutional Reform Act 2005 (or regulations or rules under it), it would be an unlawful fetter on the exercise of its discretion to proceed on the basis that such disclosure should only occur “in some exceptional circumstances”.

• The conduct of a fair selection process under section 88 of the Constitutional Reform Act 2005 requires that the JAC should inform prospective candidates of the classes of person from whom opinions or information about them may be sought.

Further the court held that reasoning in Ex parte Doody on fairness still encapsulates the principles that this court should apply.

Whilst the sub consultations by the JAC are lawful under s88(1) regulation 30 does not specify whether the consultation can come from sub consultees providing comments to the consultee. The fact that there is no statutory inhibition on sub consultation does not of course answer the fairness question.

Lord Justice Underhill dissenting held that on the available material, he was not persuaded that regulation 30 provides any statutory foundation for the kind of consultation exercise that the court was concerned with in this case. Though his lordship accepted that the statutory basis for consultations does exist in s88.

The effect of this landmark decision is that the previous dissatisfaction and division because of secret soundings, has been laid to rest. The rule of law has prevailed. Going forward members of the public can expect that the UK judiciary will consist of those based on merit and not those who might be considered popular through the secret soundings system.

4A Law represents the interests of judicial applicants of differing ethnic origins and gender. It intervened in the public interest to provide the court with assistance on the legal issues arising in this landmark historic case.

4A Law has successfully intervened in cases of public importance in the Court of Appeal and the UKSC. These include the following:

347. Benkharbouche v SSHD & Others [2017] H.R.L.R 15; [2016] QB 347. 4A Law intervened in the Court of Appeal and the UKSC contending that s.4 (2) (b) and s.16(1) (a) were incompatible with Article 6, and amongst other cases, referred to the case of Mahamdia in the Court of Appeal. The appeal was allowed particularly applying Mahamdia. The decision was upheld in the UKSC.
348. Reyes v Al-Malki [2016] 1 WLR 1785. 4A Law intervened on the scope of Article 31(1) (c) of the Vienna Convention in employment claims by domestic workers who had been trafficked. The submissions were applied in the Court of Appeal.

4A Law is grateful to both counsel Arfan Khan and Tahir Ashraf for their immensely exceptional and tireless hard work and skills without whom this successful landmark public interest intervention would not have been possible.