Let history be the judge

Lord Irvine's proposed legal reforms are causing shock waves in the profession. Can they succeed? David Lock, his former right-hand man, gives his verdict on the plans
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The Independent Online

The Lord Chancellor, Derry Irvine, recently told the world he wanted to consult on wearing wigs in court, the future of Queen's Counsel, and about creating a Judicial Appointments Commission. Now we learn that this year's batch of QCs may be the last and the consultation about fancy dress in court has started.

For those whose political insight never got beyond wallpaper, the Lord Chancellor appears to present an ambiguous figure. The more astute see a serious legal reformer and a radical lawyer straining to break out of the traditional robes of office, albeit given to the odd public-relations faux pas. This is the Lord Chancellor who created the Community Legal Service, steered through the Human Rights Act, implemented the Woolf reforms to civil procedure and made "no win, no fee" agreements the norm for personal injury cases.

So where is this all going? On wigs, the simple fact is that the law does not need to retain a silly 18th-century dress code to be taken seriously. Its authority comes from the seriousness of the issues that are decided in courts, not from its outward garb.

Debates over how judges should be appointed are more important and have gone on for years. But a health warning should be applied. These debates are bedevilled by lawyers who feel their talents have been cruelly overlooked by the current, defective, appointment system. A different system may appoint different people to be judges, but the Lord Chancellor's most vocal critics may well not be among them.

Before tearing up the present system, it's worth noting we have some of the best judges in the world. International trade disputes are habitually tried in London because of our intelligent thinking and incorruptible judges. They are a major factor in bringing billions of pounds of invisible earnings to the City and are respected throughout the world. Justified complaints against judges are very rare and allegations of corruption almost unheard of. The occasional judicial howler gets rightly punished by the tabloids but by and large we've got good judges. That means the present system for selecting them is not getting it all wrong.

Our judges may not yet be representative of the society they judge, but then senior lawyers are hardly representative either. We have a largely white, male, middle-aged, public-school and Oxbridge-educated judiciary. Derry Irvine has brought some transparency to the process by appointing a Commissioner for Judicial Appointments, who attends interviews and oversees the process. The first report from the commissioner made pointed criticisms of the existing process. The Lord Chancellor has also been quietly successful in changing the make-up of the bench since 1997, with many more women being appointed and more ethnic minority judges. But with judges serving up to 20 years on the bench and given the pool to pick from, changing the overall appearance of the judiciary is a slow business.

If the Lord Chancellor stopped appointing judges, he would give up his power to make the bench more diverse. The worst outcome of the present debate would be a judicial appointments system dominated by traditionally minded, white, male, middle-aged, public-school and Oxbridge-educated lawyers. Reformers do not want to replace the present system with a self-appointed oligarchy with sound chaps appointing the next generation of sound chaps (who might just turn out to be from the same chambers or the sons of the previous generation of sound chaps).

So what should the Lord Chancellor do? What is he likely to do? The issues here are as much about form as substance. The demand for a transparent and independent process for selecting judges appears unstoppable. For years it was Labour Party policy that there should be a public element in judicial selection and sooner or later that must come to the fore. Judges wield vast power over the public and there is a justifiable demand that there should be a transparent and accountable process in selecting in whom that power is vested.

Another health warning - passing the process wholesale over to the lawyers would be a massive step backwards. The process must be accountable to the public, not just the legal profession.

Three things seem to me to be likely to come out of the present process. First, a judicial appointments commission seems likely to advertise, interview and select candidates for the bench. It must have judges and lawyers on it, but a non-lawyer chair and majority outside m'learned friends is likely to emerge to demonstrate its objectiveness to the public.

Second, the framework for the commission's work will probably be set by the Lord Chancellor and subject to parliamentary approval. An independent commission does not mean it should be able to go off on a frolic of its own. Parliament will want to establish the meritocratic principle for appointment but equally emphasise the need for diversity and promote the range of skills needed to be a good judge.

Finally, the commission is likely to recommend who should be a judge, but there is a strong case for saying that someone accountable to Parliament should do the final appointing, probably only from those recommended. In our present system that means the Lord Chancellor. Or will we see the newly formed Lord Chancellor's Department Select Committee flexing its muscles to question candidates for senior judicial appointments? Traditionalists would turn in their graves but, for anyone with confidence in our judges, it may be a positive step forward. I doubt this will be acceptable to the judiciary, but a scrutiny session in front of MPs might give MPs more respect for the difficult job facing senior judges, and might even give our judges some modicum of respect for the difficult job done by MPs.

But what about QCs? It's no secret that QCs are unpopular with Labour MPs. Many politicians, fed up with being told by overpaid lawyers that they cannot do what they want, may feel like shooting the messenger - normally in a silk robe. Unjustified this feeling may be but real it undoubtedly is. Abolishing silks would be massively popular with Labour MPs, as well as with the consumer lobby and the Office of Fair Trading, which is firmly against QCs.

But if the QC system is defensible for lawyers, why not extend it? Charles Clarke, the Education Secretary, could promote a new grade of distinguished teachers to be QTs - Queen's Teachers. Alan Milburn, the Health Secretary, could spend part of his time appointing senior doctors to the role of QP or QS, Queen's Physician or Queen's Surgeon. This could, of course, lead quantity surveyors - already known as QSs - into conflict with the surgeons. But they could always become Queen's Surveyors. That would give them the letters QS QS after their names. Let's face it: it's all a touch arcane. Queen's Counsel don't, in practice, spend much of their time advising the Queen, and there is little justification for either the quaint tradition or the added expense of the QC system. It's great for those lawyers who get silk, but those who complain that it rigs the market have a very good point.

There are two serious points against the present silk system. First, lawyers guard their independence jealously and work within a self-regulated profession. If there is to be a grade of senior lawyers, it should be the bodies who regulate the profession who should choose who get to the front row in court, not the Government. Isn't it an affront to the independence of the profession that a government minister chooses who is a senior lawyer? There is something faintly ludicrous about the leader of the independent Bar running a campaign to preserve a system of patronage which is so inconsistent with the Bar's independence from government.

If the Bar Council and the Law Society had confidence and vision, they would grasp this opportunity with both hands, by setting up an independent and transparent system themselves, headed by a non-lawyer, and decide for themselves which advocates have demonstrated that they should have a mark of distinction. Perhaps this could be a Quality Mark for advocates, called "Quality Counsel", or QC for short.

David Lock was a minister in the Lord Chancellor's Department until 2001