ONCE it was done in smoke-filled rooms of gentlemen’s clubs or in the Temple corridors. Lawyers were appointed to be judges after the right word in the right ear; they were “tapped on the shoulder” and asked if they fancied promotion to the Bench. Whom you knew counted; as did your college or school.
This week is a landmark in the move away from the old-boy network to a modern, transparent appointments system for judges in England and Wales, with the setting up of an independent Judicial Appointments Commission chaired by Baroness Ushar Prashar. Made up of lay people and lawyers, the commission takes over the task of appointing judges from the Lord Chancellor — although for a transitional period up to July 2007 he will keep control of the senior appointments.
It will not mean a brand new system overnight. Already huge reforms have been made; High Court judges must now all apply for their posts — and complete a “self-assessment” form. There are one-day assessments for district judgeships and a fairer system of “consultations” or references.
Last week, giving his verdict on the system now, Sir Colin Campbell, the outgoing chairman of a watchdog on judicial appointments, said that it was “unrecognisable and hugely superior” to that of five years ago. But, Sir Colin cautioned, it was “work in progress, not the finished article”.
He should know. Sir Colin’s own similarly named Commission for Judicial Appointments has acted as a monitor of the appointments system, auditing the process and tackling complaints. It has had unrivalled access to files and interviews and subjected the system to unprecedented and thorough exposure, ruffling some feathers on the way.
Launching his final annual report, he delivered a warning shot. The system had come a long way but loopholes remained if anyone was “determined to meddle with merit-based appointment”, he said. Old habits and cultures could undermine the open, transparent and accountable procedures that are being established. “Sometimes the reasoning is supported by social activities rather than by professional evidence,” he said. “Things like: ‘A decent cove’ or ‘Not very sociable at lunch’.”
The failings of the old appointments system included the use of “secret soundings” — an automatic list of 75 senior judges who are asked about candidates — as well as systemic bias against less visible candidates: “Often solicitors, women and ethnic minorities.” Many had been addressed in whole or part, but some persisted.
In an audit of appointments to the High Court Bench last year, Sir Colin’s commission highlights the tensions involved in seeking to move from an old-style culture of appointment to one trying to employ modern human resources methods.
Last year’s round of appointments to the High Court was the first to use applications and self-assessment forms. On the good side, it found that candidates were not put off by the system — the quality remained high, with 41 per cent rated “very good” or “outstanding”.
There were 129 applications, of which 52 names went to the Lord Chancellor and heads of division to make their selection. They were sifted by panels, chaired by an official and including a senior judge and one lay person, who scored candidates on a scale from one to five, with one “not appointable” and five “outstanding”.
In all, 52 (41 per cent) were assessed as “very good” or “outstanding”, of which 18 were “outstanding”. It was from this group that the appointments were made. But how fair are such assessments? The commission notes that there was no “written record of any collective consideration” of one of the outstanding 18 candidates, nor of the next batch of 3 who were rated “very good” by the selection panels.
The categories themselves can bring problems: the reality is that those marked 3 or “good” will never be appointed, the commission says, and should not be given false hopes of appointment in letters — they should just be told that they are “not among the strongest candidates”.
Then there is the infamous automatic consultations with 75 senior judges. “Everything we have seen . . . confirms our previously stated view that traditional automatic consultation should end.” It was wasteful of judicial time and of limited value, with judges unwilling to be too critical of applicants. Whether candidates were known by senior judges was also a key factor in their success. Only 18 women applied and no applicants indicated an ethnic origin other than white.
Instead, the commission suggests the idea of “structured reference-taking” using properly qualified senior selection experts, although this would be costly and could be done only with a smaller list of candidates. There should also be interviews, it says, as part of the assessment process.
Finally, there is the role of the Lord Chancellor. The audit revealed one occasion when the Lord Chancellor “appeared to favour someone other than the top candidate (or candidates) favoured by the selection panels” and by the senior judges. The Lord Chancellor’s candidate was still within the handful judged to be in the “outstanding” category; but he regarded him as “better fitted” to the nature of the vacancy in question. In the end he appointed the candidate he preferred.
In circuit judge appointments, there had been four candidates where the Lord Chancellor declined to follow the presiding judges’ advice — and no detailed reasons were given. Under the new system, set up under the Constitutional Reform Act 2005, the Lord Chancellor will not be able to appoint a candidate unless he or she is recommended by the new commission.
There was one other concern. The Lord Chancellor had rejected every one of the commission’s six recommendations for redress in cases where it had upheld complaints from judges or lawyers over appointments. Twenty-eight of 52 complaints were upheld, but in six cases the commission recommended substantive redress, beyond an apology or refund of a fee, to restore the candidate to the point in the appointments competition at which he or she was disadvantaged. “A complaints system which lacks redress when complaints are upheld is at odds with the principles of natural justice,” Sir Colin said.
For the future, there will also be a new ombudsman to handle complaints but no watchdog body such as Sir Colin’s to audit the system’s progress. “In five years’ time, we hope and expect it to look different again, encompassing appraisal, targeted and structured referencing, better feedback and career planning.”
But to achieve it, he says, there needs to be a culture change in the profession and constant vigilance. “Old habits die hard. There’s still a way to go to convince women, ethnic minorities and all those who perceive the judicial culture as prejudiced against those not thought to fit the current mould.”
