Judicial reform - a hot topic which usually sees a flow of anti government court judgements after even the ideas of reforming the judiciary are announced, is back in the news in Scotland, but what has happened south of the border by way of judicial reform ?
The Judicial Appointments Commission, stands accused of having a stranglehold over the way judges are appointed .... something the legal establishment in Scotland know all about and have practiced very well for decades.
The Times reports :
The new Judicial Appointments Commission must change, and soon, if it wants to retain its credibility
Frances Gibb, Legal Editor of The Times
Do the judiciary and executive still have a stranglehold over the way judges are appointed, ensuring a perpetuation of a white, male, middle-class oligarchy?
The answer, according to the Law Society, is a resounding "yes". It is more than year since the Judicial Appointments Commission (JAC) was set up as a new independent and transparent body overseeing judicial appointments, and to create more diversity. But the society believes that little beneath the surface has changed.
In its response this month to Gordon Brown's Governance of Britain proposals for reform, the Law Society, which represents 100,000 solicitors in England and Wales, is scathing in its verdict.
The creation of the JAC, it notes, was "an opportunity to sweep away the old and bring in the new; an opportunity which we believe has not yet been fully realised". The Government retains "too much influence" , both over the staff of the commission itself (82 per cent of whom are on secondment from the Ministry of Justice or Whitehall); over its members, "selected primarily by the Lord Chancellor and the Lord Chief Justice"; and over appointments: the Lord Chancellor is responsible for considering and deciding on selections that the commission makes.
And it is not just a question of Government. Judges, of course, must have an input, but the society "remains concerned by the influence of the serving judiciary". Five of the 15 JAC members must be judges, while at present three others happen to be current or former judges.
Finally, for good measure, it notes that procedures remain skewed towards judicial influence: the practice of seeking references before deciding who should be interviewed rather than after interview has "tended to give disproportionate weight to the views of the judges in the selection process". In turn, that will tend to disadvantage those from less traditional backgrounds: women, black and ethnic candidates and solicitors.
It is true that the progress up the judicial ladder of women, candidates from ethnic minorities and solicitors remains slow, especially at the higher levels. A total of 21 candidates have been approved to become High Court judges under the new system. Ten have so far been put in post, all white, male and former barristers. Of the 11 still awaiting appointment as vacancies arise, three are women — which will, when they make it to the bench, at least boost the total of 10 women out of the current 108 High Court judges. None of the three ethnic minority solicitors who applied made it to the final round and none of the seven solicitors who did made the shortlist.
When set up in 2006, the commission was meant to herald an end to a system felt to be too closed, too reliant on so-called "secret soundings" and "taps on the shoulder" — in short an "old boys' network." But solicitors are disillusioned with the pace of change.
Ironically judges and barristers are not happy either. The JAC has come under fire for being over-bureaucratic; painfully slow, bogged down in procedures that require lengthy form-filling and a host of modern selection techniques such as self-assessment and written tests. The old system, senior judges say, may have required modernising, but it worked when judged by the quality of candidates selected.
The JAC accepts that all is not rosy. In its own response to the Governance of Britain proposals, it calls for a series of reforms to help it in its task: in particular it wants an overhaul of the management of the appointments process so that estimates of vacancies are better forecasted and candidates are not left "in professional limbo" with many months of uncertainty as to where their futures will lie.
But it makes the point, with justification, that the arrival of the commission itself was "nothing less than a quiet revolution". A spokeswoman says: "Remember we have come a long way from the old system. Appointment is now only by open competition."
The recent awards of Queen's Counsel give qualified grounds for hope. Not all QCs become judges and many judges are not QCs. But it is one measure of how the senior ranks of the profession are being selected by another body. Of the 98 QCs appointed, only 20 were women, but that was 39 per cent of all applicants. The picture for ethnic minority applicants was less encouraging: four were appointed (or fewer than one in five of the applicants) and only one QC was a solicitor (representing 17 per cent of all applicants).
Yet although women did well proportionately, they did less well than last time, when 33 of the 175 appointed were women, 49 per cent of all female applicants.
The JAC rebuts suggestions that its procedures are not fair; but recognises that references, with self-assessment, are not an adequate basis for decision in many cases. So it is moving towards shortlisting for the "vast majority" of appointments on written tests. Panels will use a mix of tests, interviews and roleplays as well as self-assessment and interview to enable "well-informed and fair" selection, it says.
In its current competition for 76 recorder positions, there will be a new qualifying test for all candidates, the first large-scale exercise to use the test. (When this was tested on existing recorders recently most of them scored very poorly.)
Meanwhile, it has embarked on a strategy with the Bar Council and Law Society to reach a more diverse group of candidates. Research will be undertaken into the pool of candidates and barriers to entry; and roadshows held to promote judicial posts. Five have been held this month (Newcastle, Liverpool, Manchester, Cardiff and Leeds). The challenge is, it insists, "for all of us in the legal and judicial world, not just us". The profession has to do its bit. If people don't apply — or reach senior levels of the profession — they can't be appointed.
Its touchstone is still appointment on merit and that, in time, its selection processes (open and fair to all applicants, regardless of their gender, race or background) will "deliver a more diverse judiciary". Timeliness is all, however. If it is retain credibility, the pace of change must now be quicker