Same old story | The Solicitors' Journal â€“ 4 June 1999
Neatly timed to coincide with the Chelsea Flower show, another hardy perennial has reappeared: the composition of the judiciary.
Yet again, research has revealed that it is primarily composed of white, middle-aged, middle-class, public school and Oxbridge educated male barristers. All that is different this time is that recent appointments under Labour have not done anything to redress the balance, save in the matter of age.
These statistics do not come as any surprise. It is true that the Lord Chancellor has taken steps to improve the situation. Judicial posts are now advertised, and women and members of ethnic minorities have been encouraged to seek appointment. But all this is merely tinkering with the system, when what is needed is a complete overhaul.
As we have frequently pointed out, the present appointments system, relying heavily as it does on informal, secret soundings, naturally perpetuates the status quo as like chooses like.
If the government genuinely wishes to broaden the make-up of the judiciary, it must create a new, open system and fulfil its pre-election promise of a Judicial Appointments Commission. Let the public know how its judges are chosen.
But reform should not stop there; it is not only the appointments system which is faulty. As the Pinochet case notoriously showed, it is not enough for judges to be impartial; they must also be seen to be impartial. There must be no hint of bias and no possibility of a conflict of interest. At present such problems are dealt with on an ad hoc basis as the need arises. Far better to have a register of judges' interests. Everyone appointed to judicial office, at every level from magistrate to the House of Lords, should be required to declare his or her interests in a register, and that register should be a matter of public record. It could even be available for consultation in every court.
The Judicial Appointments Commission could also have a disciplinary role, handling complaints against judges. Current procedures are far from open, and are generally far too slow. The creation of a known, formal procedure would do much to restore public and professional confidence in this area.
A word of caution must be added here, however. The system may be faulty, but that is not to be taken as a criticism of the judges themselves, the majority of whom are a credit to their office. It is simply that, collectively, they are not representative of society as a whole.
Separation of powers
STILL ON the subject of reform, the House of Lords Bill provides an ideal opportunity to remedy what many see as a serious flaw in our legal system. The fact that the Lord Chancellor is both a politician and head of the judiciary, entitled to sit as a judge, is an unsatisfactory state of affairs. These two roles should be kept separate.
Whether we should also, as the Justice working party suggests, debar law lords from sitting as members of the upper house is another story. In controversial matters, they have often brought the voice of reason to political debates.