Why do they all look the same?: The Lord Chancellor is not doing enough to recruit black and female judges, says Elizabeth Burney

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The Independent Online
TONY BLAIR wants to get rid of what he calls the 'puff of smoke' method of appointing judges and would put a commission in its place. His metaphor refers to the secret enclave within the Lord Chancellor's department from which, after discreet 'soundings' among the legal profession and other judges, successful judicial candidates emerge.

This system will be only moderately changed by the recent announcement from the Lord Chancellor that judicial posts up to the rank of circuit judge will be advertised. A consultation paper has been circulated, which proposes public advertisement of posts, job descriptions (amazingly, judges have had none before) and interviews by a panel with a lay member. But it is also abundantly clear that great weight will continue to be given to informal opinions sought behind the scenes from the legal establishment - hardly a recipe for equal opportunities.

What other models of judge-making are available? Broadly speaking, all countries with an Anglo-Saxon legal tradition depend upon practising lawyers as the source of candidates for the bench, and by the same token they have a big say in who is put forward.

In the US, however, the electorate has the final say - judges, along with many other public servants, being appointed by popular vote. Candidates have to justify themselves to the public on their record. 'Soft' sentencing is seldom popular, as America's burgeoning jail population demonstrates.

A totally different tradition prevails in continental Europe, where judges instead of being, as in this country, appointed by civil servants, are instead career civil servants. From the moment of graduating they enter the judiciary and never join the ranks of advocates. This makes for a profession with its own ethos, which at times produces striking results - notably so in Italy at present.

Less well-known was the deliberate decision by judges in the former West Germany over a period of years to reduce the prison population through their sentencing policy. From having been the highest, per head of population, in Western Europe, Germany's prison population dropped dramatically, to be overtaken by Britain.

Conscious collective action of that kind would be unthinkable to English judges, who pride themselves on their individual independence, occasionally to the point of eccentricity. However, as the training of judges assumes more importance, discrepancy is discouraged and more likemindedness in principle and practice is the aim.

Some would say that the English judiciary is subconsciously already too likeminded, being drawn almost entirely from Oxbridge-educated males and the collegiate coterie of the Bar. The modest changes in the style and method of recruitment proposed by the Lord Chancellor are mainly a means of coping better with the huge numbers of recruits now required in the lower ranks of the judiciary. But they are also aimed at broadening the intake, particularly in encouraging applications from women, and black and Asian lawyers.

To show willing, the Lord Chancellor is prepared, for instance, to be flexible towards late starters and people who have taken career breaks to raise their families. Earlier this month he held an open afternoon for female barristers so as to encourage them to apply to become QCs and part-time judges.

At present, out of the 2,000 part-time judges serving the Crown Court and county courts, only 186 are women and a mere 27 non-white. In the permanent ranks, 510 circuit judges include only 29 women, and there are 25 women and a sole non- white postholder among the 294 district judges. There are three circuit judges described as Asian and one other non-European. Disturbingly, given the large over-representation of Afro-Caribbeans as Crown Court defendants, there are no black circuit judges.

The Lord Chancellor has no proposals for changing the system of recruitment to the High Court, where there are no non-white judges and only six of the 95 are women. In the Court of Appeal, Lady Butler-Sloss remains the sole representative of her sex.

Race and gender are not, of course, the only factors that must be looked at to produce a judiciary of broader outlook, nor even necessarily the main ones, but these figures are deeply symbolic of the way that bench recruitment is still dominated by the traditional product of the Inns of Court.

Why are so few solicitors still to be found among circuit judges, although for many years they have been eligible for appointment? Part of the reason has been that appointments are made only after the Lord Chancellor's mandarins have made their discreet soundings from an accessible circle of applicants' colleagues and superiors - an old-boy network that operates perfectly for the tight-knit body of barristers but is much less effective in the big wide world of solicitors.

The networking will continue, as the Lord Chancellor says he cannot manage without it. The new-style 'competitive interviews' will be only one factor in his final choice.

Appointments to the High Court will remain untouched by the breath of change. Jobs are filled, by invitation only, by practising QCs and circuit judges. The Bar continues to look after its high-flyers, who will continue to get the plum judicial jobs, despite the acknowledged truth that the qualities needed for a good judge are very different from those of a good advocate.

Judges have to know the law, of course, and have good experience of applying it. But even the uncontroversial specifications in the Lord Chancellor's consultation paper place equal importance on, for example, an analytical mind, decisiveness, fairness and communication skills. It is also acknowledged that there are now more fields, such as child law, where particular experience and skills are needed.

Since all except High Court judges now have to cut their teeth as part- timers, and may be sifted out at that stage, there is a case for introducing lawyers from other backgrounds into part-time roles. The more judges are allowed to 'learn on the job', the closer we come to career judges - which may be no bad thing after all.

The author is a criminologist.

(Photograph omitted)