The goal of the commission set up after Sir Leonard’s report is to investigate complaints and review the appointments process, and does not have any role in the appointment of the judiciary or the Queen’s Counsel. None of the commissioners appointed are practising lawyers therefore ensuring total independence and bias from the subject matter. The commission can only examine and report the finding concerned and is not an appeal body.
The commissioners may investigate any complaints that have arisen from the application of the appointment’s procedures. In doing so the commissioner would investigate into whether the complainant’s application was treated fairly, this would include whether information gathered and decisions made had complied with the policy stated and whether the applicant was evaluated against the stated criteria for the appointment concerned.
The commissioners will only accept complaints that are relevant to appointments within the judiciary and the Queen’s Counsel, to competitions after the commission was established and finally if the complainant has already received feedback from the Lord Chancellor’s department on the application concerned. Once the complaint has been accepted will normally refer it to the director general of the judicial group. Papers regarding the complainant’s application will be sought after, which would include the applicant’s personal file. The commission may also demand tape recordings of the interview of the applicant concerned and those of others in order to make a comparison. Commissioners may also decide to interview the complainant or officials if need be. As soon as the commissioners have made a decision, a report is then sent out to the Lord Chancellor, which has the names of the complainants with held due to confidentiality.
Some complainants and potential claimants have expressed concerns in that complaining to the commission it might affect their future applications. The commission dismissed this as they expressed that they are separate from the body, which advises on appointments and are only concerned with the scrutiny of the procedure and complaints of the judicial appointments.
During the period between the 15th March and 31st March 2002, ten complaints were accepted for investigation. Of the ten complaints, issues that expressed concern included that of gender bias, ethnic bias, age bias and the fairness of the consultation system.
There were only three complaints during the 2001 silk competition. Quite a few issues were raised which was a direct result from the investigations of the complaints. Main concerns were the use made of applicant’s self assessments, the Guidance to Applicants and to Consultees booklets, in which were found to be inconsistent about the requirement for the consultees’ comments were to be supported by detailed reasoning.
It was emphasised that the quality of standard in the selection process of present system is high. This is not the main issue, the main issue is that many other people who have the required qualities are not being fairly considered or selected due to some flaws in the selection system. There has been evidence that the selection process has not been understood and explained. This has come from individual members of the judiciary, senior Bar and of the solicitor’s branch of the profession. Candidates who have been unsuccessful expressed that they did not understand why there application had failed or how the decision to turn them down was made.
The report made suggests that there should be a clear audit trial for all decisions, this is so to provide the Lord Chancellor with evidence in order to support the appointments made. Upon examination of the 2001 silks competition, the commission had found that it was hard to conclude on how decisions were made in the appointment of a Silk due to the lack of an audit trial. It has been emphasised by the commission that the failure of a clear audit trial will seriously undermine the confidence of the judicial appointments system.
The commission also suggests that the process of application should not be subject to delays as the process itself without delays are lengthy as it is. It has also been expressed that potential applicants may be put of from applying to judicial office due to the adverse effect of a long period of uncertainty on their ability to plan their careers.
The commission is a relatively new body in which its main role is to reduce the flaws in the system is which appointments for judicial office and Silks are made. Emphasis is put on the fact that the standard of selection is high, but the main issue is to look upon ways in which others that are of high standard but are not selected due to flaws.
