2,804 men, 312 women: that's progress, old boy

The report on the judicial appointments system is worthless justificati on, argues Patricia Wynn Davies
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The Independent Online
Two thousand eight hundred and four men. Three hundred and twelve women. That is the balance of the sexes among judges in England and Wales. So the judicial establishment had better make a few more minor adjustments to their secretive, subjective and suspect "old boys' network" system of selection. Otherwise the outside world might think it biased.

That low-key warning is the upshot of months of painstaking inquiry by the Commons Home Affairs Select Committee which, subject to some suggested tweaking here and there, has given a resounding vote of confidence in the Lord Chancellor's department practice of basing appointments on secret "soundings" or "consultations" among existing judges and senior lawyers.

At best the system means that clever and suitable women, solicitors, people from non-white racial groups, those with "paperwork" rather than advocacy practices and anyone else not quite fitting the mould will continue to trickle on to the bench in markedly small numbers and, for the most part probably remain on the lower rungs of the judicial ladder.

There is only one female Court of Appeal judge and there are only seven women on the High Court bench.

The report of the Tory-dominated committee - one of the few recent examples of a group of Conservatives appearing wholeheartedly to support the Lord Chancellor - is predictable, pathetic and patronising and a barely concealed attempt to perpetuate the status quo - especially in relation to high- ranking senior posts.

Let me make it clear. The Lord Chancellor, Lord Mackay of Clashfern, stands out from all previous holders of the office. He has genuine commitment to making appointments irrespective of race, sex, sexual orientation or political affiliation - and there are some noteworthy appointments to prove it.

But it is method, not motive, that is in issue. Judicial statistics still show, after years of debate - and some grudgingly conceded improvements in the procedure - the male of the judicial species constantly reproducing itself.

It has long been argued that an independent Judicial Appointments Commission, staffed with lay people as well as representatives from both sides of the legal profession and with no single vested interest to protect, would represent a much more objective method of recruitment to what is, after all, one of our most vital public services. Much more objective, that is, than the second-hand, even third-hand opinions that are often proffered under the current soundings system.

But, says the report, the value of the euphemistically named "consultations network" might be diminished by a commission. Well, perish the thought.

It is hard to believe that commerce, industry or the civil service would tolerate such an anecdotal approach which is so incapable of objective monitoring and which, for all we know, might well perpetrate numerous injustices and unfairnesses against men.

But as bad, perhaps worse, is the report's insidious special pleading for the uppermost ranks of the judiciary.

One of the few tangible recommendations is the one that says that job descriptions and selection criteria for all senior judicial offices should be drawn up without delay. But "practical" difficulties prevented using advertisements, competition and interviews to fill the invitation-only vacancies on the High Court bench and above.

The message is tolerably clear: persistent criticism has chipped away at the old system to the extent that normally accepted practices such as advertising, which can widen the field of possible contenders, are now used in conjunction with the "consultations" system for the lower- ranking judicial jobs, with applications handled by Lord Chancellor's Department civil servants. There can be no such intrusion on the exclusive and secret right of the senior judiciary to keep control of the appointments system.

The committee, moreover, avoided a crucial question by not extending the scope of its inquiry to the appointment of QCs - even though it accepted that appointment as a QC or "silk" is the principal route to high judicial office - again relying on "consultations".

The omission, while jolly convenient for the committee, is a further, important reason why their report is worthless.

Many people think the QC system is pretty flawed because awards of silk do not reflect increasing numbers of suitably qualified women of relevant experience at the bar. In 1995, women accounted for 16 per cent of the pool of suitable candidates for silk, 8.5 per cent of applicants and 5.8 per cent of all QCs appointed that year. The rate of appointment was only 0.8 per cent more than in 1991 when women formed 11 per cent of the pool and accounted for 6 per cent of applicants. That suggests strongly that in a system still stacked against them, women are waiting to apply until they are more sure of success.

Astonishingly, the committee suggests there is now less cause for women to "feel diffident" in applying for judicial appointment. At the same time they give unquestioning backing to precisely the kind of subjective and potentially discriminatory "word of mouth" recruitment practice that judges have condemned when cases of sex or race discrimination cases have been brought before them. Why should the judicial establishment apply such dramatically different standards to itself?