Should Judges have a Probationary Period?

There is an argument to make to give Judges a fixed term Probationary period (ex. 5 years) to determine how the Judge rules while on the bench before earning a life tenure as a Judge.  Just because someone excels as a lawyer does not equate to excelling as a Judge, thus to give an unproven person a life tenure as a Judge (up to a specified age) is not be wise policy.  Thus, (similar to the proposal on the "sunset clause" to legislation), Judges too shall have a probationary period before getting a life tenure to prove themselves worthy of this honor. 

Let's not forget, neither MP nor PM nor Mayor, etc... has a life tenured job with such power.  Who gets such a job must prove themselves worthy.

John Z Apr 5, 2015

Regarding this provision, would this crowd prefer that:  1)  the Judges be re-appointed for life tenure by the PM, with the "advice and consent of the Parliament", or  2)  the UK Supreme Court decides if the person is fit/worthy to be re-appointed for a life tenure, or  3) some other independent entity. 

Hugh Ryan Apr 5, 2015

Personally I would go with Judges being appointed for 'life' (retire at 75? maybe) with any fitness reviews being carried out by a quorum of the Supreme Court. I believe 'here-today' politicians should be kept well away from judicial appointment etc processes.

John Z Apr 5, 2015

But being that the burden to remove an allegedly unfit Judge is on the moving party, by having a Probationary Period, the allegedly unfit Judge may have their term expire without any further action.  I don't have access to any relevant records, but how many Judges have been removed in the UK last year?  The last 5 years?  If the number is small, is it because they are good Judges, or because it is a high burden to have them removed?

John Z Apr 9, 2015

When you say "fitness reviews" being conducted on Judges, are you saying for all Judges, OR, only for those having discipline/work problems?

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Rob G Apr 5, 2015

A lot of judges here start as "Recorders" - essentially lawyers still actively practising, who sit in court part time (up to a couple of months a year). That way they are assessed and have a track record that can be considered if they choose to apply for permanent roles.

John Z Apr 5, 2015

But that is a small sample as to the entire body of work a Judge will have.  So the method you mentioned may play a role into initially becoming a Judge, but that small sample should not be a basis for a life-tenure job.

John Z Apr 9, 2015

But if someone has a job for life, don't you think that may encourage mediocrity?  As long as the Judge stays out of trouble and "meets expectations", then it really does not provide any incentive to excel in their profession.  Is that what we want to inadvertently be encouraging? 

Any thoughts?

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Rob G Apr 10, 2015

There's a balance to be struck between discouraging mediocrity and a need to ensure that judges feel able to decide cases without fear or favour. And as long as there's a method for removing incompetent judges (which should be done through standard line management procedures, probably by the higher judiciary, but possibly with the Appointments Committee having some involvement), I'd prefer to ensure secure decision-making.

But there's no reason why standard "professional development" techniques shouldn't be used to help improve performance / develop new skills / identify potential mentor/mentee relationships, etc. That wouldn't need to be a constitutional matter, however.

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John Z Apr 10, 2015

I would not want Judges to be elected, nor would I want to give an untested person a life-term as a Judge.  The Probationary Period is a fair medium between those other two scenarios.  As to what entity would make a decision after the Probationary Period but before the life-term decision, the Judiciary (or as RobG stated, perhaps the Appointments Committee) may play the key role in that decision.

John Z Apr 17, 2015

How is this language:

"A person appointed to be a Judge shall have a probationary period of five years, and thereafter that person will either be re-appointed for a life tenure by the Appointments Committee, or, that person will no longer be a Judge."  

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Rob G Apr 17, 2015

As we have compulsory retirement ages, we don't strictly have the concept of "life tenure" - I think our traditional phrase is "during good behaviour", although that also sounds pretty antiquated. However, maybe we can leave that to another clause to sort out? ;-)

Maybe "Nobody shall be confirmed as a Judge until she or he has demonstrated competence in a judicial role for a period of five years to the satisfaction of the Judicial Appointments Committee."? That leaves the JAC and the (would-be) judge a bit of flexibility to work out whether the performance defects identified are remediable or not...

John Z Apr 17, 2015

But the person would be confirmed as a Judge 5 years before the Probationary Period, but he or she would be subject to the probation hearing in 5 years to get the full tenure (whether life tenure OR up to a certain age).  Unless a different term (other than "confirmed") is used for the Judge initially, with the word "confirmed" be given only once the Judge passes the Probationary Period?  

Rob G Apr 17, 2015

We don't have a "confirmation" process, so I was using the term as "become definitively". I tend to agree about "Interim Judge" or even "Probationer Judge", but we have a host of former judicial titles that are no longer used, and I'm sure one of those could be resurrected - that rather fits with our way of doing things :-) For instance, the Court of Common Pleas had Justices, we could use that... [I'm obviously only speaking about England and Wales [and Northern Ireland], the judicial system in Scotland has its own way of doing things, and its own titles]

John Z Apr 17, 2015

Any specific title you may recommend for a Constitution?

Rob G Apr 18, 2015

I wouldn't, it's far too detailed for a Constitution. I'd leave it up to the judiciary to sort out, if they feel it's necessary.

John Z Apr 17, 2015

I am hesitant to label a Judge as "interim-Judge" for a 5 year period as that may give the impression that that Judge deserves less respect and has less authority than a "Judge".    

John Z Apr 18, 2015

How is this:

"A person appointed to be a Judge shall have a probationary period of five years, and thereafter if that person has demonstrated competence as a Judge to the satisfaction of the Judicial Appointments Committee, then that person shall be given a tenure as a Judge.  Alternatively, a person failing to demonstrate competence to the Judicial Appointments Committee shall cease being a Judge". 

I didn't specify "life tenure" nor a retirement age, as that issue can be decided/amended later.

Rob G Apr 18, 2015

Why do you want to insert a North American concept into the British constitution? We use confirmed or permanent when we want to contrast with probation. Tenure is a rather legalistic term in land law more than anything else ("freehold tenure").

John Z Apr 18, 2015

Do you mean the entire proposal is a North American concept?  Or the word "appoint"?

Rob G Apr 18, 2015

No, the word "tenure" in the sense of "more or less unchallengeable appointment".

We do use " period of tenure" of an office - but when it's short-lived. "During my tenure as chairman of the golf club". Or "security of tenure" - mostly when it's challenged. But again, at least as often in terms of a lease as of a job. I'm not in academia, so I can't say it's never used in that context over here, but I only think of it in the context of US universities. And as for judges, I can't think I've ever heard it used in that way here - it's always about the judges (and Justices) in the US.

John Z Apr 18, 2015

How is the word "term" instead of "tenure"?

Rob G Apr 18, 2015

Doesn't "term" imply a time-limited period, possibly subject to renewal? Which is contrary to your whole desire.

John Z Apr 18, 2015

Or "life term" or "term subject to mandatory retirement age"?

Rob G Apr 18, 2015

"Anyone appointed to a first judicial role shall serve a probationary period of five years. At the end of that period, the Judicial Appointments Committee shall determine whether to confirm or terminate the appointment, based on the competence demonstrated."

Judges tend to progress through the ranks from Recorder to Circuit Judge to High Court Judge to Appellate Court Judge, and you presumably wouldn't want to impose a probationary period each time.

John Z Apr 18, 2015

Well Rob, if you didn't copyright that version above, I will likely borrow it for this proposal word for word.

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