Vietnam/Judicial Appts. Suffering from 'institutional schizophrenia'
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5 August 2013
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Amid much activity, Lord Mackay is making a number of changes to diversify the judiciary. Judicial appointments are now advertised in the press and all candidates will be screened by a panel which will include lay interviewers.
"He wants to reach out to a wider category of person than had considered the judiciary in the past," said a spokesperson for the Lord Chancellor's Department (LCD).
The most common complaint levelled against the LCD is that the judicial appointment process is too secretive and does not adequately represent the public. Many lawyers feel that unless the system is changed, the public (and many lawyers) will lose confidence in the entire judicial process.
At present, the system is hidden from the public. According to Barbara Hewson, chair of the Association of Women Barristers, a potential judge's name is submitted to the LCD and is then reviewed by it for three years before any appointment.
"It's a ludicrous way of going about things," said Hewson. "You wouldn't appoint the chair of British Gas this way."
Russell Wallman, head of professional policy at the Law Society, said: "Judges at the moment are overwhelmingly appointed from serving members of the judiciary. They are put forward by recommendation with the effect of favouring candidates with the same background. Recruitment results in an overwhelming number of judges who are ex-barristers, white and men."
Hewson said: "Women do not fare well in a system of patronage. It's an old boy's network."
Peter Herbert, head of the Society for Black Lawyers, said: "Even Japan, not noted for its advancement of women, has more women judges than any part of the UK. Participation in the judiciary by all groups and communities can only lead to greater confidence by those groups and communities in the judiciary itself."
By including more women and ethnic minorities, Herbert said: "Not only will the judiciary be comprised of the best but it will represent truly the society which it serves."
Herbert is pushing for the establishment of a Judicial Appointments Committee and a Ministry of Justice.
Liberal Democrat peer Lord Lester also endorses the notion of an independent Ministry of Justice. He said: "There is an institutional schizophrenia between the Lord Chancellor's Department and the Home Office. It is important that justice be united in a single department." He believes this is a complex issue and that safeguards are needed to protect judicial independence.
The LCD asserts that it is doing enough. Judicial appointments are being advertised and 17 lay interviewers, made up of a majority of women and including members of ethnic minorities, have been appointed to interview eligible candidates.
Susie Green was appointed as a lay interviewer in September and has participated in several interviews since. She rejects the criticism of tokenism. "I didn't feel that way. I felt very active in the whole process," she said.
Green a researcher who works in mental health, sees her role as "representing ordinary people". Sitting in on interviews she is looking for judges who will do "a fair and unbiased job".
Hewson believes Mackay's appointments process is a step in the right direction but needs to be "extended" to include High Court judges as well.
The statistics from the LCD support her concerns. Of the 95 High Court judges, only six are women. Of the Lord Justices of the Appeal, there are 31 men, one woman and no ethnic minorities.
The House of Commons Home Affairs Committee is listening to ways of improving the system and heard Hewson's arguments in August.
Professor Robert Stevens, Master of Pembroke College, spoke to the committee on behalf of pressure group Justice.
He believes the criteria for choosing judges are flawed and challenges the notion that judges should be chosen from the most successful advocates. "Many advocates are successful because they have a combative or competitive streak," he said.
He wants a system of justice where judges are "less adversarial".
Hewson added: "A good advocate doesn't necessarily make a good judge. The present system doesn't allow judges to identify those other factors."
The Woolf Report identified that judges are given one week of training every five years. Stevens urges more. "Unless judges know where they are going wrong they cannot improve what they do," he said
But even critics of the system, like Lord Lester, are impressed by what the Lord Chancellor has done so far. "Lord Mackay has a magnificent record in judicial appointments, he has created the strongest judiciary in this century."
The concern is that while Lord Mackay is outstanding the system is not. Unless it is made more open, the public will lose confidence in a system which is perceived as overly secretive and controlled by the Establishment.
"There is excess secrecy for no useful purpose," said Lord Williams, former chair of the Bar, and a member of the Labour Party.
He believes the justice system "needs to reflect the society which it serves".
Along with the Labour Party, he is proposing the creation of a judicial commission to deal with appointments, training and complaints-handling.
He disagrees with an MP who recently suggested that members of the public who are disgruntled with the system should write to judges and magistrates themselves.
Those who feel that something more constructive has to be done, may find comfort in Lord Williams' views: "After the next election, things will change anyway."