Analysis: Secretive, elitist, self-serving: Why Britain's legal system needs radical reform

Sir Colin Campbell's 18-month inquiry upolds four key complaints and calls on the Lord Chancellor to 'demystify' appointments

When the Lord Chancellor, Lord Irvine of Lairg, asked a senior academic to investigate the judicial appointments system, he must have known he would end up having to make some minor tweaks and adjustments to the process by which all judges and QCs are called to public office.

What he probably didn't expect was a 35-page report that begins by upholding four complaints against his own department and ends by asking him to reconsider his role in the appointments system.

Sir Colin Campbell's 18-month investigation into judicial appointments also calls for immediate remedial action, including greater efforts by the Lord Chancellor to demystify the so-called "secret soundings", where judges and senior barristers are consulted on the suitability of judicial and QC candidates. He also wants an end to the lengthy delays which characterise many of the appointments.

As an outsider to the cloistered world of the legal profession, Sir Colin asks questions that go to the very heart of the constitution of a modern system for appointing an independent judiciary.

On many of these questions, Sir Colin and his seven-strong team of commissioners have yet to come to any firm conclusion.

But today's report puts the Lord Chancellor on notice that the first Commissioner for Judicial Appointments is planning to make some unsettling recommendations as soon as he has had more time to collect his evidence.

Sir Colin, vice-chancellor of the University of Nottingham since 1988, was chosen for the role in March 2001. His fellow commissioners – who, like him, have no professional legal background – took up office a year later.

Their terms of reference allow them to investigate any complaint "arising out of the application of appointment procedures" and give them unrestricted access to the appointments system.

Of the 10 complaints made by prospective judges and QC applicants, the commissioners have upheld four, dismissed two and have yet to decide on four more. About the same number were declined jurisdiction because the commissioners ruled that they fell outside their remit.

During their inquiry they say they have uncovered a vast bureaucratic machinery for assessing the merit of hundreds of applications to some of the most powerful posts in the judiciary.

In the case of QCs, or silks, Sir Colin and his team must have also recognised that successful candidates stand to increase their fees overnight. While they found no evidence of corruption, nepotism or a system of "nods, winks and appointments made in smoked-filled rooms", they said the current procedures did not guarantee fairness to the applicant.

This does not mean that for hundreds of years judges and QCs in England and Wales have been unfairly appointed, but simply that the system may be ignoring equally good candidates who have slipped through the net.

All three of the complaints brought by QC applicants considered by Sir Colin were upheld and have now resulted in personal apologies from the Lord Chancellor.

The commissioners concluded that because of the lack of detailed records kept by the department, or the "audit trail", it was impossible to say with any confidence that these applications had been fairly assessed.

Sir Colin's report concludes: "This lack of an audit trail was particularly disappointing when combined with the fact that a number of consultees did not adhere to the requirement to provide detailed reasons for their assessments.

"In all the cases we examined, we found that the responses from several consultees did not indicate whether they were based on direct or recent experience of the applicant's work, nor indicate how the assessments related to the stated criteria."

This criticism is particularly worrying because it is made regarding a group of professionals, namely judges and senior lawyers, who make a living out of providing reasoned opinions.

There were further concerns raised about the huge workload faced by a single official in the Lord Chancellor's Department, whose job it was to assess 450 applications involving 4,700 responses under tight deadlines in 2001. The commissioners concluded that the official faced an "impossible task".

Today's report also considers the perception of the appointments system and widespread suspicion that "secret soundings" mean that judicial appointment is based on patronage and nepotism.

Sir Colin says: "It is natural that an unsuccessful applicant should feel concerned that he or she cannot know which consultees have or have not supported his or her application.

Touching on the transparency of the process he says that despite some recent "considerable efforts" on the part of the Lord Chancellor's department to make information about appointments available "we have found that some aspects of the system remain opaque".

In the course of his investigations, Sir Colin says he met many senior judges and high-ranking officials at the Lord Chancellor's Department, as well as dozens of barristers and solicitors, including three former presidents of the Law Society.

As an academic, whose interest in the law has been restricted to its philosophy and sociology rather than its working practices, Sir Colin describes the ancient traditions of the bar and the judiciary as "extraordinary".

What he doesn't say is whether he views them as extraordinarily good or extraordinarily bad. Instead, he acknowledges that they have come about through the absence of a written constitution and must be viewed as quintessentially English.

Sir Colin is much more candid about the immediate problems facing the selection of judges.

"The current judiciary is overwhelmingly white, male and from a narrow social and educational background ... the make-up of the judiciary does not mirror that of society at large," his report says.

Judges - the verdict

* The Lord Chancellor's department says there are 3,704 judges in England and Wales.

* Of these, 542, or 14.6 per cent, are women.

* There are 92, or 2.5 per cent, from ethnic minorities. Of these, 0.8 per cent are black, and 1 per cent Asian.

* There are more than three times as many male ethnic-minority judges as there are women judges from ethnic minorities.

* There are no ethnic minorities among the Lords of Appeal, Heads of Division, Lord Justice of Appeal and High Court judges.

* In 2002, 113 people were appointed Queen's Counsel. Seven were from ethnic minorities and 12 were women.

* The average judge's salary is £128,527.

* The highest-paid judge this year was Lord Irvine of Lairg, the Lord Chancellor, whose £180,045 salary is £2,500 more than Lord Woolf, the Lord Chief Justice, the next highest-paid.

* The average QC's annual earnings are £268,688.

* Last year, the highest-paid QC earned £705,000 from the public purse. A select group of QCs in private practice can earn anything up to £2m.

* The average age of a judge is 58. The youngest senior one is Dame Jill Black at 48, and the oldest, Sir Michael Moreland, 73.

* The number of days sat by judges of all types in 2001 were 242,229, of which the Crown court accounted for just more than 36 per cent (87,688).

Case study - rejection on 'trivial points' breeds disillusionment

Kishoree Pau is a senior solicitor with more than 17 years' experience of practice in London who applied to join the bench in 1998. She was rejected the following year.

Mrs Pau, 40, a mother of two children aged five and seven, says she was told at her feedback interview at the Lord Chancellor's Department that her application failed because she was too young – and did not speak loudly enough.

She says: "As far as I am concerned these were two trivial points which should not have prevented me from joining the bench. There was no suggestion I did not know the law or rules of procedure. As a result I am very disillusioned with the whole process and I shan't be reapplying."

Mrs Pau, who specialises in family and criminal law, responded to the Lord Chancellor's appeal to ethnic minority lawyers, with the phrase "don't be shy, apply", which he made at a lawyers' conference a few years ago. She has built strong ties with her local community, becoming a governor of the University of East London and a committee member of the Society of Asian Lawyers.

"My friends told me that if anyone was going to get it it was going to be me because I had the kind of background and experience that the Lord Chancellor's Department said were necessary for a judicial position." She says that since her first application nothing has happened which makes her want to reapply.