Law: The case of the judges' guilty secret

The system of `secret soundings' to appoint judges and QCs is under fire. But is the Lord Chancellor ready to implement wholesale reform?
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The Independent Culture
Thirty years ago the only group seriously interested in provoking a debate on the future of the judicial appointments system seemed to be the Monty Python team. Judges and their absurd pronouncements provided a rich vein of surreal humour for John Cleese and friends. But no matter how out of touch the judiciary were portrayed as being, no one at the time really thought there might be a better way of selecting them.

Times have changed. Next month Sir Leonard Peach will present the Lord Chancellor with recommendations for improving the current system for appointing judges.

It has already been reported, but not confirmed, that Sir Leonard favours the creation of an independent judicial watchdog to oversee all appointments. And even the Bar, from where the vast majority of senior judges are drawn, has conceded the need for change. Some reform now seems inevitable. The question is whether it will amount to a cosmetic tinkering or a root and branch overhaul.

Much depends on what Lord Irvine considers will be sufficient to answer the growing number of critics of the present system. And while there are many influential lawyers who favour radical change, Lord Irvine is not thought to be one of them.

Next week the Law Society will attempt to raise the temperature by hosting a public debate on the controversial and emotively dubbed "secret soundings" - the system where judges, barristers and solicitors are discreetly consulted on the suitability of candidates for judicial posts and the rank of QC.

In the summer the Law Society incurred Lord Irvine's wrath by launching a boycott of all secret soundings. Society president Robert Sayer said solicitors were no longer prepared to participate in a system which he described as having "all the elements of an old-boys' network".

Since then a joint working group, administered by staff from the Lord Chancellor's Department and comprising senior lawyers from the Law Society and the Bar, has recommended the scrapping of secret soundings altogether. In its place they suggest prospective judges should be selected on the basis of aptitude tests and written law exams.

Eileen Pembridge, who signed the report on behalf of the Law Society's equal opportunities committee, said much more needed to be done to help women and ethnic minority lawyers who want to become judges. In the same report, Helene Richman Pines, chair of the Association of Women Barristers, said the present QC system was unfair because it was based on secret soundings. She recommended new objective criteria for assessing QC applications and a change of name to "senior counsel".

Lincoln Crawford, chairman of the working group and the Bar's race relations committee, argued for urgent reform of secret soundings used in appointing judges and QCs.

In anticipation of the Peach report, the campaign for change has gathered a momentum all of its own. In the courts' robing rooms, where solicitor advocates rub shoulders with their barrister colleagues, the battle lines are being clearly drawn. Senior members of the Bar are on the defensive and solicitors can smell blood.

Officially the Lord Chancellor is waiting for Sir Leonard's report before he declares his proposals for change. But under questioning by the Home Affairs select committee this month Lord Irvine made no secret of his personal view by describing the current system as "beautiful". But in so doing he also provided a valuable and rare insight into how the system actually worked. Judicial candidates are considered for non-law qualities, including humanity, courtesy and their understanding of people and society. Scores of one to five are confidentially given by other senior lawyers and judges, and the marks are secretly filed on the candidate, providing an unrivalled "continuous assessment" year after year.

Lord Irvine went on to say: "The beauty of this system, which we are considering fully, is that it is so wide-ranging across so many people that the risk of discrimination or prejudice on the part of a particular candidate is reduced."

He further praised it as a "comprehensive reference system". The other criteria aspirant judges must meet are legal knowledge and experience; intellectual and analytical ability; sound judgement; decisiveness; communication skills; authority; integrity; fairness; understanding of people and society; sound temperament; courtesy and humanity and commitment to public service.

It is of course no surprise to learn that the judges share Lord Irvine's conservative view. Much welcome succour for the Lord Chancellor came earlier this month when the Lord Chief Justice leant his full support to secret soundings. Speaking at a press briefing at the High Court, Lord Bingham of Cornhill told journalists that the term "secret soundings" had "blackened" a system for which he was an "unashamed apologist".

He added: "Although every kind of criticism is made of [the appointments system] nobody to my mind has made a convincing case either that the wrong people are being appointed as judges or that many people who would make better judges are being overlooked."

Next Tuesday another point of view is much more likely to dominate the debate. It will be a brave lawyer indeed who is prepared to enter lions' den of Chancery Lane and argue that all is well with our judicial appointments system. A year ago it would have been a much more even-handed debate.

So what has changed to make the judicial appointments system such a political hot potato? One reason, suggests Sara Leslie, is the case of Josephine Hayes. Ms Leslie represented Ms Hayes in her case for sex discrimination against the former Attorney General, John Morris. She claimed that she had been discriminated against because secret soundings had been used to appoint Philip Sales to the post of Treasury Devil, the Government's chief advocate in the courts. There were claims that the post, officially titled First Counsel to the Treasury, was linked to the fact that Mr Sales had worked at Lord Irvine's former chambers at 11 King's Bench Walk. The case was settled when the Attorney General agreed to pay a sum of money to charity and so avoided a potentially embarrassing public hearing.

Ms Leslie, head of the first national Human Rights and Discrimination Unit at law firm Irwin Mitchell, believes the case directly led to the establishment of the Peach Inquiry.

"Hayes scored a direct hit against the culture of secrecy which exists at the heart of the legal establishment," says Ms Leslie. "This is the first time the Government and the legal establishment have been called to account for its system of so-called secret soundings."

Ms Leslie says that while the corporate world has been subject to the rigours of employment law for over 25 years the legal world has remained an exception.

"Secret soundings," argues Ms Leslie, "are no more than job references, yet the legal establishment dresses them up as something other than this in order to suggest that they should not be subject to any scrutiny."