A judicious choice

Carolyn Kirby sets out the case for appointing more solicitors as members of the judiciary

The recently published first report from the Independent Commissioner for Judicial Appointments did not receive the publicity it deserved.

Its approach to examining the current procedures for judicial appointments was constructive and rigorous, giving hope for positive changes in the future.

Some of the concerns raised in the report, about current flaws in the procedures, mirror concerns previously expressed by the Law Society that applicants from non-traditional backgrounds have more barriers to overcome in demonstrating their merit for judicial appointment.

It is encouraging that the commission intends to stage a public debate on some key issues, such as the role and weight of consultations in the appointments procedures.

One of the major reasons that the Society withdrew from the judicial appointments consultation process three years ago was its unease over the use of so-called secret soundings to assess the suitability of applicants.

The conclusion of the Society's council was that such a system was not only unacceptable per se, but it was also out of step with the current approach to public appointments.

The view was taken that the Society's continued participation in the existing arrangements would be seen to legitimise a system that was both discriminatory and unfair.

The council last reviewed this issue in September 2000, and, although at that time there were some improvements to report - such as greater opportunities for applicants to nominate the person to be consulted about their application, and clarification that Society consultees would only be expected to comment on their direct, personal knowledge of applicants - it was clear that informal consultations would continue to play a major part in the appointment process.

The council opted not to rejoin the automatic consultation process.

Since then there have been significant improvements to the appointments process, though the central feature of automatic consultation still persists.

Nonetheless, given the importance of the issue, I believe it would be prudent for the Society to review its policy relating to judicial appointments, not only in so far as general issues are concerned, but also, more specifically, to the question of the Society's participation in the consultation process.

I hope there may be time for the council to consider this early next year.

In my view, the debate has moved on from trying to defend the present consultation process, to seeking alternative models for the appointments procedures.

Clearly, great caution must be exercised in choosing the judiciary in view of the importance of the office judges hold and the significance of their decisions in relation to people's lives and liberty.

The search is on to find a more transparent and effective method of appointing the judiciary that will also ensure the necessary safeguards are in place.

The Society is committed to playing an active and constructive role in the debate and to working with the Lord Chancellor's Department, the commission, the judiciary and the Bar Council, to bring about an appointments system that ensures not only that those who are of the required calibre are appointed, but that they are identified fairly from the widest pool of talent.

In my view, some of the best people for the judiciary are to be found within the solicitors' branch of the profession.

It is disappointing that not only the number of applications from solicitors, but also their overall success rate, have decreased recently.

The Society will continue with its vigorous efforts to encourage solicitors to apply for judicial appointments because solicitors are, quite simply, extremely well suited for the role.

In summary, the criteria for selecting successful candidates include legal knowledge and experience; intellectual and analytical ability; communication and listening skills; authority and case management skills; commitment, conscientiousness and diligence.

Increasingly, judges take a more 'hands on' approach to the cases that appear before them, certainly in the civil field.

Who better than solicitors to understand and implement effective case management? Solicitors have the knowledge, experience and skills necessary to become successful and effective members of the judiciary.

While the present appointment process is far from perfect, the Society, nonetheless, is currently investigating how best to assist solicitor candidates to become successful applicants.

We are developing a training programme, which we hope will be available by mid-2003, offering guidance and advice to solicitors on all stages of the application process, including completion of the form, nomination of appropriate consultees and how to impress at interview.

In the meantime, I encourage all solicitors to consider applying for judicial appointment.

The Society will continue with its intensive lobbying with regard to the process itself and I hope our combined efforts will see both the number of solicitor applicants, and their success rates, begin to rise again soon.

Carolyn Kirby is the President of the Law Society