System of choosing QCs open to bias and simple hearsay

Campbell report paints a picture of a creaking system, unable to handle modern recruitment

The age-old system of "secret soundings" used for the appointment of QCs and judges is truly known to only the Lord Chancellor, a handful of his senior officials and the higher echelons of the judiciary.

But now a bright light is to be shone on the nods, winks and smoke-filled meeting rooms that have for so long characterised the process by which barristers and solicitors are promoted to the highest rank in their profession, where they can increase their fees by as much as a third.

After an 18-month investigation into the silk and judicial appointments of 2001, Sir Colin Campbell, a senior academic, has finished part of his report on "secret soundings" for QCs, the controversial process by which judges and senior barristers are asked to pass written and verbal comment on the suitability of candidates for the coveted rank of silk.

Sir Colin had unfettered access to officials and documents in every stage of the process. In his report, to be published this year, he makes alarming discoveries and paints a picture of a creaking system unable to respond to the demands of modern recruitment practices.

Sir Colin is particularly critical of the informal meetings between senior judges and civil servants in which candidates' applications are discussed. He says: "Comments taken at meetings very rarely referred to the criteria, were not supported by detailed reason, and seldom indicated whether they were based on direct experience. We consider this an undesirable practice."

This confirms what many critics of the system have long suspected, that "secret soundings" are open to bias and encourage judgements to be made on the basis of hearsay. In one case, suggestions that a candidate was not in "normal QC mould" gave Sir Colin and his fellow commissioners real cause for concern. He says: "There may be a preconceived idea among members of the automatic consultation community [the very senior judges] of what kind of person is suitable for silk." He says this creates a danger of operating "against candidates who did not fit into the mould such as women and ethnic minorities".

The report, parts of which have been seen by The Independent, also raise concerns over the description "leader of the profession", which the Lord Chancellor's department uses to define suitable candidates. Sir Colin says many candidates may display the necessary attributes of a QC but may not choose to play an active part in "social networking within the profession".

And he says: "In many cases, different automatic consultees express widely differing opinions of the same candidate's advocacy skills and professional qualities."

The commissioners recommend that an independent person be appointed to oversee the initial "sifting process" where all 450 applications are initially graded on a scale between A-plus or minus "leader of profession" to D-minus "does not fulfil criteria". Sir Colin's report suggests this is the most flawed part of the process because it has such important consequences for applicants.

Sir Colin says he was "surprised" by the response from the Lord Chancellor's Department when he raised concerns that during the sifting process "unsupported comments" had been taken into account. Officials told him they had "not focused on providing a clear audit trail", adding: "When up against tight deadlines, completion of the sifting document was not treated as a priority."

Sir Colin concludes: "We regard it as unacceptable that ... the silk round should not have left a clear audit trail. In the absence of such a trail, we cannot rule out the risk that the same pressures may have affected the actual decision-making during the sift."

Many critics of "secret soundings", including the Law Society, which regulates 100,000 solicitors in England and Wales, will hope Sir Colin's report is a first step towards creating an independent judicial appointments commission. But the commissioners see no need to change the anonymity principle, which allows judges and barristers to comment in secret. They say: "We accept that confidential references form an integral part of many selection procedures. In our view, it is not unreasonable."