From Secret Soundings to Transparent Consultation:
The New Duties of the Judicial Appointments Commission after Thomas v Judicial Appointments Commission

1. Introduction

The Court of Appeal’s decision in Thomas, R (On the Application Of) v Judicial Appointments Commission ([2025] EWCA Civ 912) marks the first comprehensive judicial scrutiny of the Judicial Appointments Commission’s (JAC) “statutory consultation” practices since the creation of the Commission in 2006. District Judge Katie Thomas, an unsuccessful candidate for Circuit Judge appointment in 2021/22, challenged the fairness and legality of:

• the JAC’s reliance on undisclosed negative comments supplied by third-party sub-consultees; and
• its refusal to reveal or properly test those comments with her.

Central to the claim were three legislative provisions:

The decision strikes a new balance between maintaining confidentiality of referees and ensuring fairness to candidates. Three declarations were granted; the overall selection outcome for Judge Thomas was not quashed.

2. Summary of the Judgment

1. Legality of sub-consultation. Regulation 30 neither requires nor prohibits the use of sub-consultees; the practice is lawful under the broad power in s.88(1) CRA 2005.
2. Confidentiality not absolute. Section 139(5) does not bar disclosure of negative comments where another head of “lawful authority” in s.139(4) applies, in particular s.139(4)(b) (disclosure “necessary for” the selection function).
3. Five permissible options. The Court identified five ways the JAC may handle negative material. Maintaining a blanket policy of non-disclosure save in “exceptional circumstances” is an unlawful fetter on discretion.
4. Transparency duty. Fairness requires the JAC to inform candidates, in advance, that statutory consultees will canvass third parties and to outline the categories of sub-consultee.
5. No individual relief. Judge Thomas did not obtain quashing of the 2021/22 decision because the Court lacked the underlying negative comments and could not safely find the outcome unfair on the facts.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• R v Home Secretary, ex p Doody [1994] 1 AC 531 – Lord Mustill’s classic six fairness principles framed the Court’s approach, especially the need to disclose “the gist of the case” against a person when fairness so requires.
• R (Talpada) v SSHD [2018] EWCA Civ 841 – Singh LJ’s distinction between procedural and substantive unfairness guided the refusal to quash the decision despite unfair elements in the process.
• R (Segalov) v Chief Constable of Sussex [2018] EWHC 3187 (Admin) – Demonstrated that “secret” complaints affecting a person’s interests normally need to be disclosed in gist.
• European cases Volkov v Ukraine (2013) & Denisov v Ukraine (2018) – Cited on Article 8 ECHR. Ultimately the Court held Article 8 added nothing where domestic public-law fairness principles already sufficed.

3.2 Legal Reasoning of the Court

a) Statutory Framework

“Regulation 30 is not a felicitous foundation for the kind of consultation undertaken by the JAC… But it does not limit the questions that can be asked.” – Sir Geoffrey Vos MR

• The JAC’s power to design and implement a consultation process comes primarily from s.88(1) CRA 2005, not regulation 30.
• Because regulation 30 says nothing about third-party soundings, it cannot be interpreted as banning them.
• The Court preferred a purposive reading: information gathering from a broad judicial audience is necessary for merit-based selection, but must be undertaken fairly.

b) Construction of s.139 CRA 2005

Subsection (5) protects the identity of the information-giver only unless one of the lawful authority gateways in subsection (4) is triggered. Therefore where disclosure to the candidate is “necessary” for fairness in the exercise of JAC functions, consent is not needed.

c) The “Five Options” Framework

1. Ignore the negative material.
2. Test the concerns covertly at interview.
3. Reveal only a “gist” while protecting the source.
4. Seek consent to disclose the comments fully.
5. Disclose without consent where necessary under s.139(4)(b).

The Court held that slavish adherence to options (1) or (2) breaches the obligation to consider all five routes case-by-case.

d) Transparency and Legitimate Expectation

Candidates were entitled to assume the statutory consultee was the only person consulted because the information packs said nothing about sub-consultees. The Court found this lack of candour substantively unfair but not so egregious as to vitiate the competition result.

3.3 Potential Impact

• Immediate procedural change. The JAC must now publish clear statements, in every competition pack, that leaders, presiders and other judges may be contacted for evidence-based comments.
• Broader public-law significance. The judgment clarifies the interplay between statutory confidentiality clauses and common-law fairness – a template for other regulatory bodies handling confidential referees’ reports.
• Future litigation. Candidates who receive adverse outcomes can insist the JAC demonstrate it considered each of the five options. A mechanical “we never disclose” approach will be vulnerable to judicial review.
• Culture shift. The Court validated the ongoing role of confidential soundings but demanded “professionalised transparency”, potentially improving trust in the judicial appointments system.

4. Complex Concepts Simplified

• Statutory Consultee vs Sub-Consultee – Regulation 30 names a single person (e.g., the Deputy Senior Presiding Judge). That person may, in practice, ask other judges (“sub-consultees”) for views. The issue was whether this wider circle had legal footing and how candidates should be told about it.
• Section 139(5) CRA 2005 – Often misread as an absolute cloak of secrecy for any referee. The Court clarified it is overridden where another part of s.139(4) authorises disclosure (e.g., because it is necessary for fairness in the appointment process).
• Procedural vs Substantive Unfairness
  • Procedural: flaws in how the decision is made (e.g., not letting you answer allegations).
  • Substantive: the outcome is so unfair it amounts to abuse of power even if the procedure was lawful. The Court here found procedural unfairness in the lack of transparency but not substantive abuse justifying a quashing order.
• The Five Options Test – Think of it as a sliding scale from total secrecy (Option 1) to full disclosure (Option 5). Fairness requires the JAC to pick the right point on the scale, not default to the secret end.

5. Conclusion

Thomas v JAC recalibrates the balance between confidentiality and fairness in judicial appointments. Key takeaways are:

• Sub-consultation is lawful, but its existence must be transparent.
• Section 139 confidentiality is not an absolute bar; the JAC may disclose negative comments when necessary.
• The JAC must actively choose among five recognised options for handling adverse material; a rigid “non-disclosure unless exceptional” rule is unlawful.
• The declarations granted, rather than quashing the result, underscore the Court’s reluctance to disturb appointment outcomes absent clear, case-specific prejudice.

For candidates and public bodies alike, the message is clear: secrecy must now be justified, and transparency is the new default in the judicial appointments landscape.