Law: judicial appointments

Law: judicial appointments

Last Updated: 2:24am BST 05/07/2007

Since the Judicial Appointments Commission began work last year, the Lord Chancellor has retained a residual role in appointing judges. It is now up to Jack Straw to decide whether to accept a candidate selected by the commission, or to ask for the selection to be reconsidered.

But, as the Government reminded us in the Green Paper it published on Tuesday, "the grounds on which he can reject or ask for reconsideration are strictly limited by statute and reasons must be given in writing".

In his statement to Parliament, Gordon Brown proposed that "the Government should consider relinquishing their residual role in the appointment of judges". Very good. But that's not quite what his Green Paper said.

"The Government is willing to look at the future of its role in judicial appointments: to consider going further than the present arrangement, including conceivably a role for Parliament itself, after consultation with the judiciary, Parliament and the public, if it is felt that there is a need," Mr Brown said in The Governance of Britain.

This surely contemplates that Parliament might have the power to reject would-be judges in the same way that the US Senate can reject nominees to the Supreme Court. What is the point of the Lord Chancellor giving up his powers if we are to have confirmation hearings before government-dominated parliamentary committees?

Senior judges have already recoiled in alarm, pinning their hopes on Mr Brown's promise of consultation. Even if parliamentary committees have no power to reject would-be judges, any change would discourage applicants. It is already difficult to persuade the best lawyers to apply and some are looking for a way out. Mr Justice Peter Smith, we learned yesterday, was more than disappointed in May when Addleshaw Goddard, the City solicitors, withdrew their invitation to him to leave the Bench and join their firm.

Last year, the Judicial Appointments Commission was asked to find 25 candidates for future vacancies in the High Court. Although 144 lawyers applied, only 21 names were sent to the Lord Chancellor in April. Since the commission is under a statutory duty to worry about such things, I should point out that none of the 21 is from an ethnic minority, none is a former solicitor, and none is disabled. Only three are women.

The Commercial Court is finding it particularly difficult to fill looming vacancies. That should be no surprise. By taking a judicial appointment, the top commercial silks stand to lose several hundred thousand pounds a year. So were the four unfilled places on the Lord Chancellor's High Court shopping list reserved for commercial judges?

Lady Prashar, chairman of the Judicial Appointments Commission, refused to answer that question directly when I interviewed her this week - even though the overall figures are now public and even though it is known that the commission was asked to find candidates for specific jurisdictions.

Why, then, could she not find the 25 people she was asked for? Candidates were put off by the fact that they must now apply for the post, she said. It was a cultural change from the days when people were simply offered an appointment. There were 15 more applicants than last year and a smaller reserve list meant that fewer shortlisted candidates would be disappointed. And 25 was only an "estimate" of the number needed.

"I could have done 25 but I wanted to have people who were eminently selectable," she said. "We have merit criteria against which we assess people and if we think that only 21 meet the criteria that is what we will do."

I pressed her a little harder. For whatever reason, she did not get good candidates for the Commercial Court. "We got some," she replied, "but we did not get as many as we would have liked."

All 21 recommendations, she confirmed, had been accepted for potential appointment by the former Lord Chancellor, Lord Falconer. But had any of them been turned down for specific posts? Lady Prashar could not say - that process was still continuing and she did not have the figures. Surely she would remember if Lord Falconer had turned down a High Court judge this year? That had not happened, she conceded. Was that because she had not yet made any individual recommendations or because he had not turned anybody down? She could not tell me.

What about circuit judges? The commission had been asked to find 107. As long ago as February, the commission promised to shortlist 59 lawyers who had been wrongly rejected at the initial stage. Surely that exercise must have been completed by now? How did it go?

Again, Lady Prashar could not tell me. Her annual report, published yesterday, gives details only of selection exercises completed by the commission before March 31, in which the Lord Chancellor has accepted the commission's recommendations, and the individual candidates knew the results.

Why, then, had she published some of the High Court figures, given that none of these criteria apply to them? Because, she explained, they were requested by Parliament.

What, then, is covered by her first annual report? It records 50 appointments to Mental Health Review Tribunals - for 53 vacancies - and eight appointments to various specialist posts. On the whole, the appointments were reasonably well divided between men and women, solicitors and barristers. But only three of the 58 appointments came from ethnic minorities. "Progress on minorities is slow and we are making concerted efforts to improve this," Lady Prashar said.

One should not be too harsh on the commission. All the "outreach" in the world cannot force candidates to apply - whether they are successful QCs or minority solicitors. Lady Prashar inherited an unsatisfactory system with little time to put matters right. The first six months after the commission started working were blighted by the risk that it would have to move out of London within two years - a daft decision, now rescinded, that made it impossible to recruit staff.

But if the commission is to throw off the last vestiges of political involvement in judicial appointments, it will have to be more open about what it does.