Judging the judicial selection process

When the Marylebone Cricket Club ended its 212-year ban on women members in March, it represented for some the demise of a fine bastion of English tradition. For others, it was the abolition of an elitist anachronism which sustained an inequality unacceptable in modern society.

And yet, according to some, a more powerful elitist club continues to flourish within the British judiciary. Not only are the members of its upper echelons – the 12 Law Lords – exclusively white and male, but there is a dearth of women, ethnic minorities and solicitors at circuit, high court and appeal judge level (see box).

The method by which these appointments – and that of Queen’s Counsel – are made, has remained largely the same for centuries. The Lord Chancellor makes the decision after seeking, behind closed doors, opinions of applicants from judges, senior lawyers and professional bodies. These “secret soundings” remain confidential, although the Lord Chancellor’s department (LCD) stresses that unsuccessful applicants receive “feedback sessions”, giving reasons for their non-acceptance.

Anecdotes abound about the vagaries of these reports – notably that one barrister’s application for QC was recently rejected “for lack of judgement” even though he had just been made an assistant recorder.

The LCD is not even sure whether the people consulted in the secret soundings are different for solicitors and barristers.

A spokesman says: “The idea is to ask people who know the applicants’ work. If the usual contacts don’t know them, presumably people who do would be asked. I’m not sure it’s that scientific.”

The paucity of solicitor QCs – just four – and solicitor judges is evidence of a flawed and discriminatory selection process, claims the Law Society, and has prompted it to refuse further participation in the secret soundings process.

Law Society president Robert Sayer says: “The present system is pretty well doomed. It’s so out of step with modern ideas it’s hard to see how it can survive into the next millennium.

“It isn’t even suitable for a gentleman’s club nowadays, so it certainly isn’t for public appointments.”

Sayer argues that, by its very nature, the soundings system discriminates against solicitors, who, with the advent of the Woolf reforms, may make more suitable judges than barristers.

He says: “Great weight is given to the views of the senior judiciary which are bound to be more in favour of people they know, ie QCs who regularly come before them. There is also a tendency to look at the skills of advocacy as the main criteria.

“Since the Woolf reforms there has been a shift in emphasis. Judges no longer need to be great advocates. You want someone who can manage cases.

“A senior partner in a big City firm is ideally placed to do that. But they may not have appeared in court for years so they won’t come to judges’ attention,” says Sayer.

He says soundings go against the key principles of the agreement reached in the Hayes case, when barrister Josephine Hayes took the Attorney General to tribunal over the appointment of Treasury Counsel.

The case established that vacancies should be advertised, applications and references considered by a selection board, and the Attorney General should not appoint anyone not recommended by the board or seek opinions from anyone other than the board and candidates’ referees.

Sayer believes that with more than 50 per cent of judicial appointments coming from just seven sets of chambers, many barristers are discriminated against too.

“If you are from a small chambers or an unfashionable one the chances of becoming a QC or a member of the judiciary are virtually zero.”

However, one bar source is cynical of the Law Society’s motives in announcing its stance now.

He says: “Every time the Law Society runs into difficulties, mostly to do with its own housekeeping, it seems to lash out at QCs as an easy target to divert attention from their own problems. They have done it before and they will do it again.”

A Law Society spokesman dismisses this as “absolute rubbish”, claiming that the announcement was made in response to a request for submissions to the Sir Leonard Peach Inquiry.

The former commissioner for public appointments was asked by Lord Irvine in July to examine the selection procedures and whether safeguards against sexual and racial discrimination are effective.

An LCD insider suggests this inquiry could be a precursor to Lord Irvine setting up a judicial appointments commission (JAC) – the Law Society’s preferred method of selecting judiciary members.

According to a department spokesman, Lord Irvine’s official stance on such a commission, which would require an act of Parliament to create it, is that he is happy to look at such a proposal, but it is not a priority. He adds that it is “unlikely” such a measure will be introduced in this session of Parliament.

Andrew Dismore, a partner at Russell Jones & Walker and Labour MP for Hendon, campaigned hard for a JAC during the Access to Justice Act’s passage through Parliament.

Of the Law Society’s stance he says: “This is excellent news. I kicked off a campaign in the summer and it now seems to be getting heavyweight support.

“The Lord Chancellor was not persuaded then but as the call for change gains more support he may have to change his stance.”

Dismore hopes the Peach Inquiry will be the first step towards establishing a JAC.

“If you have secret soundings, you have the potential for discrimination. People are condemned without trial. They are vetoed in circumstances where they can’t answer the allegations.”

“Lord Irvine says it has to be the cream of the profession but that assumes that the right pool is being looked at.

“I think it should be broadened, to include people from employment tribunals, for example. The pool for the judiciary is currently the bar, effectively, although technically, solicitors are included. Becoming a QC puts one on a fast-track to the judiciary. But just because someone is a decent QC, doesn’t mean they will be a decent judge. Solicitors are just as capable of being good judges.”

He says the Lord Chancellor should consider fast-tracking younger people to judicial posts, training them early and introducing methods for spotting high-fliers.

“We need a much clearer promotion system. Rather than being parachuted onto the bench, people should maybe have to work their way up.”

The bar’s response to the Law Society stance on QCs is that they represent the equivalent of a kite mark.

Michael Grieve QC, Bar Council co-deputy chairman of public affairs, says: “It is in the public interest to have an upper tier of experts who have a seal of approval and a kite mark to which people can go if they have a complex area of law to deal with. It’s like a senior consultant in medicine.”

One of the complaints against the QC selection method, he says, was removed when the Bar Council decided to charge applicants for the process, rather than the tax-payer having to foot the £120,000 annual bill.

He says that rather than a JAC, the bar favours an advisory committee, made up of judges, senior lawyers from both sides of the profession and lay members.

A Bar Council spokesman argues that a JAC can fall victim to political influences. While he concedes that the Lord Chancellor maintains Chinese walls in his role as head of the judiciary and government minister, he says that there is an “illogicality” to this system.

An LCD spokesman says Lord Irvine will respond once he has received the final report from Peach, which is due before the end of the year.

He says: “The Law Society’s response is an important one but still only one of a number of groups which will be responding to Sir Leonard’s committee.”

By the time the Human Rights Act comes into force next October, the LCD wants to have appointed six more High Court judges. Unless the increasingly vocal clamour for change to the judiciary selection process wanes soon, they may be the last appointments made using the archaic secret soundings system.