Delicate question of judging Judges

not only about whether Judges should be vetted but whether homosexuality

should disqualify them from office.

While civil rights groups claim ''anti-gay bias'' surrounds the case,

the legal profession has called for tighter controls in the appointment

process of candidates seeking senior legal positions.

Time was when divorce or adultery would have prevented appointment to

the judiciary, and until recently a senior Judge would be unlikely to be

seen drinking in public places.

Many, like Lord Denning, a former Master of the Rolls, still share the

view that Judges must remain ''above reproach,'' and although

homosexuality is not illegal it could be used to blackmail a Judge.

Last night, Lord Denning, 91 next week, added: ''Homosexuality is not

an offence, but it is wholly deplorable. I've never known anything like

this before in all my years -- not even a whiff of such a scandal.''

Lord Denning worries that a Judge conducting a homosexual affair with

a barrister could be influenced in his judgment should they appear in

court together. Others are more fearful that an affair could be fodder

for blackmailers.

Professor Robert Black, of the department of Scots Law at Edinburgh

University, agrees there is an argument for formalising a code of

conduct for senior Judges, but accepts it would be extremely difficult

to establish firm guidelines between acceptable and unacceptable

behaviour.

''Judges do face severe restrictions on their private and public

lives. At the moment the accepted standard to which all High Court

Judges adhere in private and social life ensures that they must not

publicly be seen to be the subject of ridicule, scorn or contempt,'' he

notes.

While agreeing with the Lord President, Lord Hope, that homosexuality

was not a bar on promotion to the High Court, Professor Black questioned

the reality in practice.

''If an affair is well known, then that is fine. But if a Judge has

been having a homosexual relationship which has been kept secret, they

are opening themself up to the possibility of public scorn, contempt or

ridicule.''

The appointment of senior Judges is usually made from a small ''club''

of suitable candidates, and some believe this, in itself, provides

adequate vetting of candidates.

However, the Dervaird case has led the Law Society of Scotland to

repeat its call for a more detailed investigation of candidates,

although as yet the Scottish Office says there are no plans to change

the present procedure.

For some time the Law Society has been expressing concern over the

system whereby the Queen makes a High Court appointment on the

recommendation of the Scottish Secretary. The society favours the

creation of a judicial appointments board.

Mr Ken Pritchard, Law Society secretary, says: ''There is a process of

investigation into the suitability of a High Court candidate, but it is

not in any way a public investigation at present. Nor is there a public

body which can look at the candidate. It is all done with a measure of

secrecy,'' said Mr Pritchard.

It is this secrecy which annoys MPs across the political spectrum. Sir

Nicholas Fairbairn, Tory MP and former Solicitor-General for Scotland,

is among those calling for a statement from the Scottish Office, which

remains unusually silent over the matter.

Perhaps correctly, Sir Nicholas believes the continuing speculation

and the news that two other senior Judges were questioned over alleged

homosexual acitivities or relationships, begs a speedy reply from

government.

Meanwhile, the case has apparently angered many gay-rights groups. Mr

Tim Hopkins, spokesman for the Scottish branch of the Lesbian and Gay

Action Group in Edinburgh, said a Judge's sexual proclivities were his

''own business alone.''

''It is all very well saying he could be blackmailed if he was gay,

but that would only happen if the discrimination against homosexuals

existed,'' said Mr Hopkins.

The Scottish Council for Civil Liberties is concerned that allegations

that one or more of the Judges involved was seen in a gay disco should

have been considered sufficient grounds for questioning by the Lord

President.

''Sexual orientation should not be a bar to holding public office of

any nature,'' said a spokesman.

As the debate continues, the damage both to the bench and gay rights

has clearly been done.

Professor Black concludes: ''What is damaging about this case is that

if Judges are not respected by those they are sitting in judgment on,

then that is a very very bad thing for the administration of justice.''