Diversity is the buzzword when appointing judges. But are efforts to create a broader judiciary running aground? Last week, on International Women’s Day, ministers released figures showing that since 2002 the proportion of women appointed as judges had risen from 24 to 41 per cent and among ethnic minority candidates in the past year from 9 to 14 per cent.

That same day Mrs Justice Dobbs, the High Court judge, addressed the annual dinner of the Association of Women Solicitors and took the chance to echo the recent words of Lady Justice Arden that despite “considerable pressure” for diversity, women and ethnic minority lawyers are still not being appointed. Since she was appointed in 2004, only two of 22 High Court appointments were women and none were from ethnic minorities.

Other efforts to change the face of the judiciary have run into serious trouble. About 200 rejected candidates for the circuit bench have been reconsidered after representations by senior judges, including the Lord Chief Justice. As disclosed by The Times in January, the Judicial Appointments Commission (JAC) was forced to review the candidates after admitting that their references were wrongly excluded at the initial sifting stage. The result was that an extra 59 interviews were offered, on top of the 90 originally given.

The fiasco was put down to human error and a misunderstanding about what should be taken into account at the first sift. But applicants maintain that they were clearly told that “the short-listing panel will consider only the information in your application form”. The confusion has aroused concerns that the old-boy network is alive and well; some candidates felt that it was barristers, used to relying on judges’ references, who felt disadvantaged by the new system and who kicked up the fuss. Fiona Woolf, President of the Law Society, has demanded to know how many solicitors were among the initial selection and how many among the revised list.

Then, in a separate incident, the Lord Chancellor has reappointed 21 judges after they launched an unprecedented High Court challenge when their five-year contracts were not renewed. The part-time immigration judges maintain that the final appointments made in December after substantial delays were not on merit, took no account of judges’ track records and that the nonrenewing of their contracts was unlawful. In the face of a potentially embarrassing public challenge, the Lord Chancellor has agreed to reappoint all 21.

The decision has also aroused concern because some candidates are from the Crown Prosecution Service (CPS). Ironically, this is part of a drive by the CPS, where there are more women and ethnic minority lawyers than in the private profession, to move up the judicial ladder. But some lawyers say that the appointments breach the doctrine of the separation of powers. One asked: “Is it right for CPS lawyers, effectively employed by government, to sit in judgment in cases where the Government is a party?”

This latest muddle over immigration judges is not down to the JAC but to the Department for Constitutional Affairs, which was handling the applications before the commission was set up. But there are common factors: a complaint that little or no reliance was placed on the views of the senior immigration judiciary who know best “the strengths and weaknesses of the judges with whom they work” and secondly, that there were glaring inconsistencies in the appointments process. Meriel Schindler, head of employment at Withers, who acted for the judges, says her investigations found an appointments process that was “shambolic”.

Neither episode has done the new JAC any favours. Schindler added: “Fair and open recruitment procedures are essential for integrity, impartiality and independence of the judiciary.” The commission will now be under intense scrutiny to show it can meet that test; and that in an effort to achieve diversity it does not sacrifice fairness — and, more crucially, merit.

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