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Judge removal policy could be misapplied, Law Society warns

By Monidipa Fouzder >>

(21 October 2022)

The Ministry of Justice has been urged to put on hold plans to introduce a policy designed to remove judges long absent from work due to ill health amid growing concern that judicial office-holders could be ousted without consent or proper support. The Law Society is among the critics. 

The Gazette revealed yesterday that the ministry has been consulting on a removal process for judges below High Court level that could come into force next April.

The removal process would begin after 12 months’ continuous absence, where there is no ‘realistic prospect’ of the judicial office holder returning to work imminently, or before 12 months if the medical evidence states that there is no realistic prospect of the judge returning to work within a year. In certain circumstances, two periods of continuous sickness absence could be linked and treated as a single absence.

The consultation paper states that in 2017, the Judicial Office conducted an informal consultation with the Judges Council and their respective associations, ‘and found that there was general support for a policy to give effect to the lord chancellor’s legislative powers of removal.

‘Reasons cited in support included the difficulties faced by senior and local leadership judiciary who deal with long-term absences and the added pressures on local judges caused by long-term absences. Responses, including informal responses, raised during that consultation have been considered in formulating the new policy’.

The consultation document was sent to 27 individuals and organisations, including the Scottish and Welsh governments. It stated that the list is not meant to be exhaustive.

The consultation closed yesterday. As the Gazette reported, the Judicial Support Network warned in its consultation response that implementing the policy would represent an ‘unconstitutional and controversial change’ to judicial security of tenure.

The network is not alone in its concerns, the Gazette has since learned.

The Law Society warned that the policy could introduce a two-tier system that would make it easier to remove judges on ill-health grounds without their consent. ‘The Law Society is concerned that this policy could be misapplied to encourage a judge to take early retirement on ill health grounds, rather than proceed with a grievance claim,’ a spokesperson said.

Given the scale of the proposed changes, Chancery Lane said the consultation was inadequate, lacked transparency, relied on ‘informal’ responses from 2017 and failed to consult all relevant stakeholders.

The Society has asked the ministry to push back the April implementation date ‘to allow for a transparent and robust consultation, and to ensure that any changes are considered by parliament’.

Writing to the ministry yesterday, GMB, a trade union which set up a judicial branch earlier this year, said the policy appeared to have been written without directly consulting those it affects.

GMB said the postholder is not provided with, or apparently allowed to seek, support from an independent trade union representative throughout the process, contrary to the ACAS code of practice on dismissals. Neither does it mention that redeployment, to mitigate a dismissal, could be considered. ‘Again, we believe this is contrary to the ACAS code of practice on dismissal (ill health) which operates in similar policies throughout the Ministry of Justice,’ GMB said.

The consultation document contains an equality statement. The ministry says that following the consultation exercise, it will assess whether the statement needs to be updated or if a fuller impact assessment needs to be carried out.

GMB told the ministry that without an impact assessment being undertaken, ‘it is difficult to be precise about how the policy may impact on those postholders with protected characteristics’.

(Courtesy: The Law Society Gazette)