Irvine's job decision 'open to objection'

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Leading article: Cronyism is the enemy of equal opportunities

A decision by the Lord Chancellor to appoint an old friend as his special adviser was criticised by three senior judges on Thursday as one that was "open to objection".

Although the Court of Appeal cleared Lord Irvine of Lairg of sexual and racial discrimination, the judges said selecting from a "circle of family, friends and personal acquaintances" might not lead to the best candidate for the job.

A claim of sex discrimination over the appointment of Garry Hart, a City lawyer and longstanding friend of Lord Irvine, was first upheld by an employment tribunal in 1999. But the decision was reversed at the employment appeals tribunal this year.

Jane Coker, a white solicitor, and Martha Osamor, a black legal adviser, supported by the Equal Opportunities Commission, alleged that by not advertising the position Lord Irvine had breached laws on sex and race discrimination.

The Court of Appeal dismissed the women's appeals but also criticised the method Lord Irvine used to appoint Mr Hart, who is a godfather to one of the Prime Minister's children.

Lord Phillips of Worth Matravers, the Master of the Rolls, Lord Justice Schiemann and Lord Justice Mummery said: "Making an appointment from within a circle of family, friends and personal acquaintances is seldom likely to constitute indirect discrimination." But they added: "It does not follow, however, that this practice is unobjectionable. It will often be open to objection for a number of reasons. It may not produce the best candidate for the post.

"It may be likely to result in the appointee being of a particular gender or racial group. It may infringe the principle of equal opportunities."

The court's comments will be taken very seriously by the Government, which has about 70 special advisers employed on the same terms as Mr Hart.

The judges had been told during the hearing last month that Lord Irvine had adopted a course of action that was "dangerous" for equal opportunities when he appointed Mr Hart to the £73,000-a-year job.

Robin Allen QC, Ms Coker's barrister, said: "That kind of recruitment goes to reinforce existing élites. It is that kind of recruitment that is behind what is sometimes referred to as glass ceilings."

In the first instance an employment tribunal ruled out Ms Osamor's complaint because she was not qualified for the post, but it found that Ms Coker had suffered detriment because she was qualified but had not been considered because of a discriminatory requirement that the appointment should be restricted to someone personally known to the Lord Chancellor.

In January this year the employment appeals tribunal held that Ms Coker and Ms Osamor could not establish they had suffered harm over the appointment because each had been unaware of the vacancy until after the post had been filled.

Yesterday Lord Phillips said the appellants had devoted "considerable time and money" to the litigation, which the Lord Chancellor had at one time described as "mischievous".

The judge said: "Neither claimant alleged that she should have been appointed the Lord Chancellor's special adviser. Each simply alleged that she should have had the opportunity of being considered for the post. How and why has so much money and energy been devoted to seeking to establish that right?" He said the appellants had denied any political motivation but wanted to challenge the practice of closed, or internal, recruitment.

Mr Allen applied to take the case to the House of Lords, saying it raised points of "real public importance".