The news – although not yet officially announced – that Sir John Thomas is to succeed Lord Judge as lord chief justice of England and Wales shows how fallible some of us were in predicting that the job would go to Lady Justice Hallett.
But it also demonstrates that, in favouring Thomas over Hallett, the selection panel was determined to put traditional judging skills above a career in criminal law. They were not prepared to be swayed by the feeling that it would be good for diversity to have a woman at the top.
The third candidate, Lord Justice Leveson, has had a millstone round his neck since taking on an inquiry into press regulation that was bound to attract media criticism. He would have been at a disadvantage from the start if he had become chief justice.
Roger John Laugharne Thomas first sat as a high court judge in the intellectually demanding commercial court. A lord justice of appeal from 2003 to 2011, he then became president of the Queen’s bench division – in effect the second most senior judge responsible for criminal appeals.
In that role, he built up a back catalogue of strongly reasoned judgments that Hallett was simply unable to match.
Thomas, who turns 66 shortly after starting his appointment on 1 October, will have four years as the senior judge in England and Wales. He has a Welsh background and was called to the bar by Gray’s Inn, the inn of court with the closest links to Wales.
Though charming and affable in private conversation, Thomas gives the impression both in court and in meetings of being a man in a hurry. His briskness in court may sometimes be mistaken for brusqueness. But he certainly gets things done.
As senior presiding judge from 2003 to 2006, Thomas deftly handled the judges’ negotiations with the Ministry of Justice over the constitutional position of the courts service. Thanking him in 2007, Lord Phillips of Worth Matravers, who was then lord chief justice, said his energy and enthusiasm had been prodigious.
In an after-dinner joke borrowed from Lord Neuberger, Phillips recalled Lady Thatcher’s famous tribute to Lord Whitelaw – “every prime minister needs a Willie” – and suggested that “every lord chief justice needs a John Thomas”.
Thomas was chosen for the senior judicial post in England and Wales after an extraordinarily elaborate appointments process. For the first time, candidates were required to write a 2,000-word essay on a subject given to them. The panel required candidates to make a “short impromptu presentation” on a subject of which they were given no advance warning, an ordeal they were unlikely to have encountered since applying for university.
They were also told they must identify “the most senior civil servant with whom you have significant recent contact, and the nature of the work you did together” – a sign of the huge administrative responsibilities that the chief justice must exercise. The constitutional future of the courts service is back on the agenda.
Thomas was chosen by a selection panel headed by Christopher Stephens, chairman of the Judicial Appointments Commission. It included two other lay commissioners – Prof Noel Lloyd and Dame Valerie Strachan – as well as two senior judges, Lord Neuberger and Lord Dyson. The selection panel was required by the lord chancellor, Chris Grayling, to send him detailed reasons for its conclusions.
Although Grayling was thought to have favoured the appointment of a woman as chief justice, he was persuaded by the panel’s reasoning, forwarding its recommendation to Downing Street and not asking the panel to think again. A formal announcement is expected shortly.
Hallett must be deeply disappointed at not becoming the first female chief justice in England and Wales, but she is not the sort of person to show it. She delivered a feisty lecture on judicial independence to a group of Canadian judges in Cambridge last week, even though she must have known by then that she was no longer in the running for the top job.
Though two years younger than Thomas, she is not seen as a likely candidate to succeed him in 2017. Fully aware of where her own strengths lie, she does not aspire to a seat in the supreme court. As vice-president of the Queen’s bench division, she would be well placed to take the job that Thomas is now vacating. But she may need some persuading that the No 2 role – as held by Lady Hale in the supreme court – is no small honour.
Not for a woman, then, the most glittering judicial prize of all: at least, not this time. However hard this may be for female judges to accept, this is not because they are not good enough. Nor is it because male judges are prejudiced against them. It is because, with most of the applicants being male, the chances that a woman will be the strongest candidate, judged by traditional criteria, are statistically small. Nobody wants to change those criteria.
And Thomas was always the favourite to take over from Judge. Five years ago, I said he “headed the list” for 2013. So here’s another prediction, this time for director of public prosecutions. Two of the three shortlisted candidates are called Alison. One of them will get the job.