Leading Article: Our white, male, upper-middle-class, snail-paced judiciary

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The Independent Online
There is an element of lottery in the law, but it is not decided randomly, by ping-pong balls in a wind machine. There is a bias in the system which ensures that some people are more likely to win than others. The narrow social background of judges has long been recognised as an obstacle to the impartial dispensation of justice, an obstacle being eroded with glacial slowness. Yesterday, the Lord Chancellor, Lord Irvine, suddenly announced new measures to open up the appointment of judges.

At first sight, he seems to deserve at least two cheers for widening the pool from which judges can be appointed and for making the process of appointment more transparent. There is no doubt that these small steps, such as asking people to apply for top judicial jobs instead of choosing them in secret, and taking into account career breaks to raise families, are infinitely preferable to inaction. But they are, in fact, so small that they would be utterly unexceptional in any other field of public appointment. And for that reason we can raise only a single shout of applause.

The overwhelming impression continues to be one of a closed and secretive system, with which Lord Irvine is quite happy because he controls it. He uses his power to benign ends, to be sure. He has also appointed two solicitors as deputy High Court judges, and rightly boasts that this has not happened before. Opening the judiciary to solicitors is long overdue.

But it is unsettling, to say the least, that he simply abandoned a promised consultation on the idea of an independent body to appoint judges. His decision was so abrupt that it leaves a clutch of leading lawyers with a meeting with his department pencilled into their diaries for later this month - a meeting that now seems redundant.

A key element of the status quo, then, is to remain in place. There was a time when Labour in opposition condemned the principle of a government minister appointing judges. Then Tony Blair became leader, and Mr Blair is Lord Irvine's protege; the party's condemnation was quietly dropped. Still, the idea of an arm's-length Appointments Commission lived on, and the new government said it would consult on the merits of the proposal.

Yesterday Lord Irvine said he had decided not to proceed with a commission, but instead to concentrate on making the changes he regards as most urgent.

There is much to be said for not governing by endless consultation and reviews; it may be that a commission would simply be another quango dominated by judicial vested interests and absorbed into the present government machine. But to ditch a consultation process that has barely begun looks somewhat high-handed.

All that is left of the idea of a check on the actions of government is a pledge from Lord Irvine that he intends in the long term to review whether to appoint an ombudsman to examine complaints from anyone who feels unfairly treated by the appointments process. As a short-term pledge this would be inadequate. As a long-term "maybe" it is feeble.

There is also a leaden silence from the Lord Chancellor on the barriers to an inclusive, representative judiciary farther down the food chain. The appointment of QCs, the barrister elite of "silks" from which judges are drawn, is still carried out in secret, through informal "soundings" and in a way that appears to discriminate against women and ethnic minorities.

In the small world of the new politico-legal establishment, it was Lord Irvine's other former pupil, Cherie Booth, who last month appeared to act as a spokeswoman for the Lord Chancellor's department. It had "recognised" that women's careers were slowed down more than men's by having a family, she said. "I think it is perfectly possible for women to have children, maintain an active role with those children and still develop a practice to a degree which allows you to apply for silk and get it." She has, of course, proved it, but she is wholly exceptional. She not only became a QC at the young age of 40, but is on the first rung of the ladder in the judging business as an assistant recorder. Her success - thoroughly deserved - does not mean that the urgency of reform has diminished.

The figures tell their own story. There are 3,151 judges in England and Wales. Of these, 306 are women and 15 are non-white. "Not one black High Court Judge," as Mr Blair himself said in his speech to the Labour conference last week. The news bulletins tell the other, recurring part of the story, such as the judge last month who said that if a persistent shoplifter had to be separated from her baby at birth, that was part of her punishment. The white, male, privately-educated bias of the judiciary is a blot on British justice, and demands more vigorous action than the Lord Chancellor's tentative steps towards reform.

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