Analysis Law lords

Twelve of these men for they are all men will be the defenders of our newly-won human rights. The two in the thick border have just been chosen. There was no advertisement, no interview, no selection panel. Just secret soundings. The same applies to their replacements in the Appeal Court, to be chosen soon. It's high time things changed. HOW to choose a judge, docket one. The appointee is going to play a key role in protecting human rights, so the British state took pains to ensure a lawyer with the most knowledge and experience was chosen. The job was advertised.

From the 33 applicants who submitted a CV, a shortlist of five was drawn up. To interview them a high-powered assessment panel convened, on it two of the country's most senior judges, the permanent secretary to the Lord Chancellor's Department, the chief legal adviser to another government department and, as a lay representative, the former deputy chairwoman of the Equal Opportunities Commission, Joanna Foster. One of the judges on the panel, Lord Justice Simon Brown, was a public lawyer with years of experience of fighting the battles of individual versus state both at the Bar and on the bench.

That was the process by which this year the name of Nicolas Bratza QC was put forward to become Britain's first full-time judge at the European Court of Human Rights, which sits in Strasbourg under the aegis of the Council of Europe. By contrast, docket two: the procedure by which Lord Justice Millett and Lord Justice Hobhouse emerged to become the newest of Britain's 12 law lords, our supreme court. For them, no advertisement, no CVs, no interviews and no selection panel. Instead, 'soundings', secret chats among other senior judges – the other law lords, the Master of the Rolls (Lord Woolf) and the Lord Chief Justice (Lord Bingham).

The Lord Chancellor recommended the appointments to the Prime Minister, who put the names forward pro forma to the Queen. Yet those law lords, Millett and Hobhouse, will play a bigger role than Nicolas Bratza in safeguarding the rights of the individual against the state in Britain. Once the Human Rights Bill incorporating the European Convention on Human Rights (ECHR) comes into force next year, Britain's citizens will be able to enforce their fundamental human rights in their own courts.

Cases will go to the law lords on appeal, giving them huge influence on how the judiciary exercises its new and demanding role as the guardian of our basic rights and freedoms. Since the law lords sit in panels of five (with at least a three-two majority to decide the issue), a single judge can swing the balance decisively. In the new full-time European Court of Human Rights at Strasbourg, where judges will sit in groups of seven or 17, the scope for individual influence is less. The law lords are about to change fundamentally.

They are taking on a role akin to that of the United States Supreme Court or the South African constitutional court. Yet to the public they are unknown. They are selected by a secret process which involves a politician, and an unelected one at that (the Lord Chancellor). IN the United States, candidates for the Supreme Court bench are quizzed publicly about their views by the Senate judiciary committee. South Africa has a judicial service commission with lay representation which subjects candidates for the constitutional court to lengthy interviews, often in public.

The retired permanent secretary in the Lord Chancellor's Department, Sir Thomas Legg, not known for his radicalism, recently suggested that the House of Lords, once reformed, might set up a judiciary committee which would question law lords-elect in public. Lord Mackay, Lord Chancellor in the last Conservative government, was convinced that judges' political views would have to come under scrutiny if the ECHR were incorporated into domestic law – his main reason for opposing the move.

The experience of other countries shows that the backgrounds and views of the judges in the final appeal court do matter in how rights are interpreted. Anne Bayefsky, professor of law at York University in Toronto, notes that the supreme court of Canada started out interpreting that country's charter of rights and freedoms liberally, but later rowed back as its personnel changed. 'The Canadian supreme court's general retrenchment on charter review in recent years seems to have more to do with changes in the court's membership and particular judicial personalities than principle,' she wrote in the European Human Rights Law Review(1).

'The crucial role of judicial experience and predisposition to the outcome of charter cases, and the fact that an entrenched bill of rights inevitably gives judges the responsibility of defining and applying basic community values, means the legitimation of judicial decisions will depend on greater representation on the bench from different segments of society. A judiciary which seeks – albeit usually covertly – to gain general assent for the fundamental moral decisions made inevitable by a constitutional bill of rights will require a greater diversity of membership than is hitherto the case in either Canada or Britain.

' In Britain there is little prospect of greater diversity while the pool of candidates remains so restricted and advice about new appointments comes mainly from those already on the bench. A 1992 report on the judiciary from the all-party law reform group Justice, chaired by Robert Stevens (now Master of Pembroke College, Oxford) pointed out that four senior judges have an effective power of veto over High Court appointments(2). 'Selection relies heavily on the views of those in post, and there has proved to be a risk of bias towards self-replication.

' It's more than a risk. Senior judges come from a remarkably similar background, male, white, public school and Oxbridge, which has changed little in the past 50 years. There are no women among the law lords, only one among the 35 Appeal Court judges, and seven among the 97 High Court judges. Ethnic minorities are completely absent from the higher judiciary. There are no black full-time judges at any level, and only four (mainly Asian) ethnic minority circuit judges out of 558.

This week two new judges are due to be appointed to the Appeal Court to fill the gaps left by Hobhouse and Millett. They are certain to be white, but will they be male? The Association of Women Barristers, the Association of Women Solicitors, and the Fawcett Society have been lobbying for the appointment of two women, Dame Mary Arden and Dame Brenda Hale, both of Appeal Court calibre. Arden still has some time to serve as chairman of the Law Commission, so is probably not in the running.

But will Lord Irvine the Lord Chancellor, who talks a good line on equal opportunities, put his words into action and double the number of women from one to two? The current system could hardly be better designed as a way of keeping things as they are, filling the bench with 'people like us'. Full-time judges for the High Court and the circuit bench are drawn from the pool of practising barristers and solicitors who have sat for several years as part-time recorders or deputy High Court judges. Files are kept on them from the time they first apply for part-time posts.

Soundings are taken from judges, leaders of the Bar and solicitors' profession, and senior colleagues. Comments are given on the basis that the candidate will never be told what has been said about them or who said what. They have none of the rights of civil servants or other employees to look at their file. Labour planned, once in power, to open up this fusty system through a new judicial appointments commission, replacing the soundings with a more scientific method of selection and bringing in a lay element.

In Law Reform For All, published a year before Labour came to power, Lord Irvine put forward the radical suggestion that there should be three new non-lawyer members for the House of Lords, whose votes would rank equally with the judges, to be appointed from a list drawn up by an independent judicial appointments commission(3). Once in office, he shelved the idea. Lord Williams of Mostyn, the new prisons minister, still favours a commission. He has advocated a judicial college to deal with appointments and training since his time as chairman of the Bar in 1992.

In 1994 he described a decision by the Conservative Lord Chancellor, Lord Mackay, to advertise appointments to the circuit bench as 'no more than cosmetic tinkering' (Lord Irvine has since extended the tinkering to High Court appointments). In the same article Lord Williams said an incident in which Lord Mackay tried to tell a judge how to deal with appeals raised questions about whether a Lord Chancellor should have any direct control over judges' appointments(4). A worrying feature of the present composition of the Lords is that none of the judges is an expert in criminal law.

Some of their judgments have brought confusion rather than clarification to an important area of the law and one where they will have a bigger role after incorporation of the ECHR. Why no criminal lawyer? Because those seen as having the best brains tend to come from commercial law backgrounds and those are the judges who are promoted. Distinguished academic lawyers, who have been among the most successful appeal judges in other countries, could fill the gap and help to widen the judicial pool.

The Justice report, from a committee which included three leading QCs, an ex -president of the Law Society and a former circuit judge, called for an appointments commission with a small judicial input, but a lay majority. It would hold selection boards, like the Civil Service, and advise the Lord Chancellor on appointments. As judges are increasingly called upon to examine the validity of legislation and executive action, the way they are chosen should be at least partially isolated from the executive, said Justice.

Robert Stevens, chairman of the committee, spent much of his career in the US and was a professor of law at Yale. The author of several books on the judiciary and the administration of justice, he favours a commission which would appoint rather than advise. 'You can't in this day and age have a system in which, however much consultation there is, none of it is in public and none of it is open to any scrutiny. Here is a politician, a member of the cabinet making appointments. In what sense are they apolitical? Only the English could describe that as apolitical. '