All rise?

The way in which lawyers progress to the bench is increasingly under attack.

So what improvements can be made to our judicial appointments process? Or is it time simply to scrap the system altogether? Scott Neilson reports

Nineteen months ago, Sir Colin Campbell was appointed by the government to head the independent Commission for Judicial Appointments in a bid to ward off growing criticism that judges win their lengthy tenure amid a climate of secrecy that discriminates against solicitors, women and ethnic minority applicants.

Sir Colin's first report, released last month, has now called for the demystification of the 'secret soundings' process - whereby the Lord Chancellor makes a decision on each candidate after seeking, behind closed doors, the opinion of applicants from judges, senior lawyers and professional bodies.

The report also called for an end to the lengthy delays that characterise many judicial appointments and said the appointments process to the bench was not fully understood by those taking part.

The current system lacked a proper audit trail and failed to prove that all applicants to the bench are treated equally, it said.

Comments made in the secret soundings were often 'gossipy and unprofessional' remarks that had no bearing on the criteria for the appointment.

Furthermore, many consultees even failed to indicate how recent their experience of the candidate was, or how well they knew the candidate's work.

Many did not even give proper explanations for their comments.

But Jenny Williams, the current director-general of judicial appointments at the Lord Chancellor's Department (LCD), points out that no system is perfect.

'I don't think anybody could give an assurance that any system is 100% fair every moment of the time,' says Ms Williams.

'Nobody likes people pointing to problems.

But we were aware of them [before the publication of the report].

I think Sir Colin has brought some of them into sharper focus and we have done a lot ourselves - because we weren't happy with the last [appointments] round at all, for all the reasons set out in his report.'

One of the many ways in which the LCD is striving to improve the process, says Ms Williams, is by asking for more detailed and specific feedback from interviewees.

'We are discouraging people from just sending in very vague comments.

We are saying: "Please only comment if you really know the candidate."'

Sir Colin's report also raised concerns that not enough judges are women or come from ethnic minorities.

The Lord Chancellor's standard response to what is by now a standard criticism, is to point out that lawyers from these legal subsets simply have not been practising long enough to have come up through the ranks.

The same argument in relation to solicitors with higher court advocacy skills, at least, can also be used to explain the lack of solicitor judges, as advocacy rights have only existed for a few years.

But does the actual rate of progress towards the bench for solicitors, women and ethnic minorities lawyers justify Lord Irvine's optimism?

Quite possibly.

According to the Lord Chief Justice, Lord Woolf, solicitors (who already dominate the district bench) are now making a 'significant contribution' to the circuit bench and are also slowly gaining ground on the High Court bench.

Meanwhile, statistics from the Lord Chancellor's fourth judicial appointments annual report do indicate progress on the part of women and ethnic minority applicants.

The report, published at the end of last month, said that women made up 31.7% of applicants to the bench in 2001/2 (compared to 25.6% in 2000/01 and 24.2% in 1999/2000) and candidates who declared themselves to be of ethnic minority origin accounted for 8.2% of all applicants (7.1% in 2000-2001).

The report also showed that 23.5% of the women who applied were successful (20.8% of male applicants) and that 20.5% of those candidates known to be of ethnic minority origin who applied were appointed (21.4% of those known to be of white origin).

A Law Society spokeswoman said: 'The Law Society welcomes recent improvements to the appointments procedures.

We are also committed to working with the Commission for Judicial Appointments and the LCD to overcome any barriers - real and perceived - to appoint people of merit from non-traditional backgrounds.

Therefore, we encourage solicitors to consider applying for judicial appointment as we believe they have a great deal to offer the community as members of the judiciary.'

Julian Lew, a partner at City firm Herbert Smith and one of only eight QCs, says that when you look at the demographics of past judicial selection pools, it would be surprising if white middle-class lawyers did not dominate the present-day bench.

Nor would the introduction of quotas solve the problem, he says.

'One has to remember that the law is actually a middle-class profession operating in a country where white people are the majority,' says Mr Lew.

But Andrew Dismore, the Labour MP for Hendon in north London and a partner at national law firm Russell Jones & Walker, remains sceptical of the bench's ability to be truly representative of the society that it presides over.

'Sir Colin's report has simply matched what I've been saying all along, ever since I tabled the Access to Justice Bill back in 1997.

That is, we need a much more open and competitive process when it comes to selecting our judges.

We need proper criteria, monitoring of performance and quality control - just like for any other job you apply for,' says Mr Dismore.

'In the real world, if you give a reference that is incorrect, you can actually be sued for it.

This system is a self-perpetuating oligarchy.

As far as the minorities and woman go, you're talking about very tiny numbers.

Experience as a barrister isn't the same as being any good as a judge,' he says.

One alternative to the present system is simply to hand the power of appointment over to Sir Colin and his fellow commissioners; Lord Irvine has not ruled out this idea, but remains to be convinced of its merits.

Another is to elect judges, as is the case in the US.

One individual strongly in favour of this step is tabloid columnist Richard Littlejohn, who recently railed against the power of the judiciary in an article in The Sun headlined 'Who will save us from the men in wigs?'.

In particular, Mr Littlejohn heaped opprobrium on Lord Woolf's recent appeal to judges to be prepared to be unpopular in making a stand against the government's fight against terrorism.

'Now the judges are using the Human Rights Act to frustrate the government's attempts to protect the security of the nation,' he warned.

The solution? 'I've always believed that judges should be elected,' he wrote.

But the US system would not be greeted wholeheartedly in the UK.

Michael Caplan QC, the Kingsley Napley partner who defended General Pinochet against extradition and is chairman of the Solicitors Association of Higher Court Advocates, says this is because 'judges must operate without fear or favour'.

Mr Caplan - who is also a Crown Court Recorder - says: 'Judicial apointments should be made on merit.

I see severe problems if you have some sort of electoral system for judges.

It might lead to a US-style system in which judges feel obliged to make decisions because they are popular and will appeal to the public.'

Radical reform to one side, the Lord Chancellor has actually made a move to improve and modernise the appointment process for judges in the last few years - besides the production of his figure-filled annual report.

Other measures range from the abolition of the system of appointments to the High Court bench by invitation only, to opening opportunities to the blind to become recorders.

The LCD's Ms Williams emphasises that the appointment process will, by its nature, always be complex and difficult.

'If there was some wonderful objective test - do a blood test to find out - we'd use that.

We are constantly looking for the best ways of getting information on how suitable the people are against the criteria.

So, as developments like assessment centres and appraisals for part-time judges come in, then I would expect these measure to replace the [secret soundings] recommendations more and more,' she says.

For Mr Caplan, the current 'exceptionally high standards' of our judges is proof enough that the system, however much it is seen to be flawed, does actually work.

'Put it this way.

How many judges have been guilty of such misconduct that they have had to be removed from the bench? And unless there is evidence to suggest that there is widespread prejudice or corruption, then I don't think you can suppose that it actually exists,' he says.

Scott Neilson is a freelance journalist