When I was very young – in 1994, to be precise – I published a book in which I called on the lord chancellor to hang up at least one and preferably two of his three wigs. ‘We would then have an independent speaker in the House of Lords, an independent judiciary without a government minister presiding over it and a minister of justice sitting in the House of Commons.’
Be careful what you wish for. Now that the government has implemented these reforms, I am beginning to wonder whether they were such a good idea after all. And so, perhaps, is the government. Only last month I heard one of its members argue that it would be wrong to undo several hundred years of constitutional evolution without a great deal of care — even though the system we now had was not the one we would have designed from scratch. After all, the speaker continued, there were advantages in having a senior post ‘where law and politics meet’.
Those were precisely the points that were put to me by Conservative lord chancellors such as Lord Hailsham and Lord Mackay when I called for reform of their anomalous office. So it was curious to hear the same arguments espoused by Lady Scotland, the Labour attorney general, explaining why she had opposed – and defeated – moves by Gordon Brown to reform her equally anomalous post.
But perhaps I should not be surprised. It was Mackay who picked out Patricia Scotland and made her the first black woman QC at the prodigiously early age of 35. Since she had not thought herself ready for such seniority, it seems unlikely that she would have sent off her non-refundable £2,350 application fee to the Queen’s Counsel Selection Panel if today’s arrangements had existed in 1991.
In those days, the lord chancellor also appointed the judges. But once the government started unpicking his interlocking functions, that responsibility was passed to independent commissions.
That was when things started to go wrong. And not just because of increased bureaucracy and delay: it has taken more than six months to fill the vacancy on the Supreme Court created last July when Lord Neuberger – to nobody’s surprise – was appointed master of the rolls.
More important to the government was increasing the proportion of women and ethnic minority judges on the bench. It is surely no coincidence that a distinguished Asian woman, Lady Prashar, was chosen to head the Judicial Appointments Commission. But, as the commissioners said in their most recent annual report, ‘throughout the judiciary the numbers of women, ethnic minorities, those with a disability and solicitors do not reflect the pool of available candidates’. So last April Jack Straw asked another woman who had struck a blow for equality to find out what had gone wrong.
Lady Neuberger, who happens to be sister-in-law to the master of the rolls, heads an advisory panel ‘charged with identifying the barriers to a more diverse judiciary and making recommendations to achieve speedier and sustained progress to a judiciary more representative of the people it serves’. The panel’s report will be delivered to the lord chancellor in the next few weeks.
The problem Straw faces is one entirely of the government’s making. Everyone agrees that merit must remain the sole criterion for selection as a judge. There can be little doubt that some people who merit judicial appointment are not joining the bench. The best way to rectify this problem would be for a distinguished senior lawyer — let’s call him the lord chancellor — to hunt around for minority lawyers of real quality and appoint them to the judiciary — people, of course, like Patricia Scotland.
But the famous ‘tap on the shoulder’ is now regarded as politically incorrect. Instead, we have a system that prevents high-quality candidates from setting foot on the ladder. Not long ago, one of the most successful QCs in her field applied for a part-time appointment as a recorder. Like many high-flyers, she has very little experience of family work or crime.
Applicants are required to take a 90-minute written test. Last year’s tests are available on the commission’s website. They require no knowledge of criminal law but anyone unfamiliar with court practice in family and crime will inevitably be at a disadvantage. As you may have guessed by now, the brilliant QC failed the qualifying test.
To state the problem is to suggest the solution. What Neuberger should recommend is a training scheme for would-be judges. The Judicial Academy, as we might call it, would be responsible for ensuring that no candidate who merits judicial appointment is inappropriately excluded.
In the case of the brilliant QC, all that might be needed is a one-day course on judicial practice and procedure. Other candidates could need weeks of training. Some might not make the grade and it would then be the duty of the Judicial Academy to warn them off.
The academy should be open to all who can take advantage of its services. But it should actively seek out minority candidates and invite them on to its courses. Since it would not be a selection body, that would surely be acceptable.
All this would cost a great deal of money. Some of those groups least represented on the bench would not be able to make use of the academy unless scholarships were available. But the current outreach programmes operated by the Judicial Appointments Commission are clearly not sufficient. Tony Blair should never have heeded the siren calls for reform of the lord chancellor.
No comments yet