Examination of Witnesses (Questions 60
- 79)
TUESDAY 10 NOVEMBER 1998
THE RT
HON THE
LORD IRVINE
OF LAIRG,
QC, MR IAN
BURNS
60. How will you ensure that law firms who have
made life difficult for the Legal Aid Board, CPS or some other
public authority will not be discriminated against when the contracts
are handed out? Is there a danger of that?
(The Lord Chancellor) You will have to suggest how
that may happen.
61. The suggestion comes from the President
of the Law Society so I feel confident in making it. Is there
a danger—I put it no higher—that firms that have made
life difficult in the past for the Legal Aid Board, the CPS or
some other public authority may not be awarded these contracts?
(The Lord Chancellor) In fairness, what is necessary
is that within the Legal Aid Board there should be mechanisms
under which there can be challenges by firms of solicitors who
have been denied a franchise, had a franchise withdrawn or been
offered a contract on terms that they believe to be unfair. The
Board proposes to set up a franchise appeal body which will comprise
a member of the Board, a solicitor and a representative from a
quality assurance organisation. An invitation will also be extended
to a representative of the Law Society as an observer. That appeal
process will be available to all firms whose franchise has been
withdrawn or from whom a franchise has been withheld. There will
also be parallel procedures in relation to contracts.
62. It is right that one effect of the contracting
system is that there will be a reduction in the total number of
solicitor firms able to offer legal aid services?
(The Lord Chancellor) In responding let me focus on
the responsibility of government in relation to this. I take the
firm view as the custodian of public money that contracting with
specialists is the only route to quality assurance. I start from
that ground position. Government should ensure that specialist
services are available to the public. I accept that there are
many pressures on small solicitor firms today. For example, the
Law Society has its own problems because of the amount of the
premiums to be paid into the Society's indemnity fund which small
firms have to pay to get the cover they require. That is a huge
pressure on them and their fee-earning capacity. One must also
remember that legal aid represents only about 12 per cent of the
total income of solicitors. There are many pressures on small
firms and I hope that none of them goes out of business as a result
of going over to quality assurance, but the public interest is
absolutely clear. Small firms, no more than any of us these days,
cannot escape the obligation to improve their skills in order
to survive.
Mr Winnick
63. In the 18 months that you have been Lord
Chancellor have you managed to achieve a more balanced judiciary?
(The Lord Chancellor) What is my objective? I want
the very best judiciary which means the very best lawyers with
all the qualities that are needed for them to become judges. When
"balance" is talked about very often it means gender
or sufficient numbers of people coming forward for promotion from
the ethnic minorities. I doubt if any Lord Chancellor—perhaps
I am making too large a claim for myself—has tried as hard
as I have to encourage women and members of the ethnic minorities
to apply. To take the ethnic minorities first, there is a culture
of reticence about applying. These practitioners must be encouraged
to apply. In the last silk round I was delighted that I was able
to appoint four members from the ethnic minorities Queen's Counsel—the
best figure ever. I was also delighted to be able to appoint 10
women Queen's Counsel—the largest ever figure, or perhaps
it was equalled once before. But I did not appoint them on gender
or race balance but on merit. That is what it ought to be.
64. No one is likely to dispute that it must
be on merit. You mentioned the number of QCs who had been appointed
on merit, and that is an encouraging start. As far as High Court
judges are concerned, when you came before us on the last occasion
(13 October 1997) you said that of the High Court judges seven
were women and one was from the ethnic minorities. Has that remained
the same?
(The Lord Chancellor) I shall have to write to you
to provide the actual figure.[1]
65. To go back to the questions asked last time,
you said that the Labour Party was committed—you were quick
to point out that it was not a manifesto commitment—to having
a judicial appointments commission. You said that there was "every
possibility that in the fullness of time we may go out to consultation
on it". Are you going out to consultation on this matter?
(The Lord Chancellor) I have focused prior attention
on what has been called the modernisation of justice or access
to justice. That has been my high priority. There has also been
a great commitment of resources by my department to mental incapacity.
The one thing I have learned after 18 months in government is
that I cannot do everything all of the time. I have made a significant
number of improvements to the judicial appointments system, and
I should like to list them. If there is any allegation of misconduct
made about a candidate for judicial office that must be specific
and disclosed to the individual so that he or she has an opportunity
to respond; otherwise, it will not be relied upon. I believe that
to be an improvement. I have involved judges and lay people in
the sifting of applicants for circuit judge appointment and appointment
below that. I have ended the system of appointment to the High
Court by invitation only. We now invite applications for appointments
so that no one feels excluded. I have made it absolutely clear
that applicants with a particular sexual orientation do not have
to declare the mere fact of that.
66. Did they used to do so?
(The Lord Chancellor) There was a question which had
the following flavour about it: "If there is anything in
your private life which if it were to become public would be a
possible embarrassment to the Lord Chancellor, please let us know."
That was interpreted in a particular way, as I am sure you can
imagine was natural. I have introduced flexibility in part-time
sitting arrangements where in particular women, and possibly men,
take career breaks for the purposes of rearing children. I gave
keynote speeches at the Minority Lawyers Conference in November
last and the Women Lawyers Conferences on 25 April of this year,
all designed to encourage people to apply. I went as far as to
write to all heads of barristers chambers to say that there was
a culture of reticence and unwillingness on the part of members
of the ethnic minorities to put themselves forward and to say,
"If you know anyone who is in your judgment a likely candidate
and who should be seriously considered please encourage him or
her to apply." All of these are positive things.
67. No one can dispute that, least of all myself.
To return to the idea of a judicial appointments commission, which
many would say is the right way of appointing people in a much
more public and above board manner, are you saying that in effect
that is not on?
(The Lord Chancellor) I certainly have not ruled that
out.
68. In this Parliament?
(The Lord Chancellor) I have not ruled it out in this
Parliament. It would be a very controversial matter, as I probably
realise better now than I did before, the fear being that such
a body might result in the proposition that a judiciary should
be balanced and not chosen on merit and that political affiliation
might become relevant to judicial appointment, which it never
is today. When I appoint people I do not know and do not inquire
about their politics; it is based only on merit. But I certainly
do not rule out in principle the possibility of a judicial appointments
commission that will be advisory but sees all the material. There
are great problems associated with confidentiality as you can
imagine. To give some idea of the scale of the consultation, there
were 1,000 applicants for assistant recorder in 1996/7. The number
of people consulted were 1,600 and the written comments received
were 8,000. In the 1998 silk round there were 500 applicants,
425 people were consulted and there were 4,200 written comments.
As to the High Court Bench in 1998, the number of people consulted
about prospective appointments were 157 and there were 2,300 written
comments. All I am saying is that the one part of the work of
my department that has particularly impressed me—of course
there are others—is the quality and extent of the consultation.
I read it all and it is of very high quality. I made it plain
when I became Lord Chancellor that any allegation of misconduct
had to be either made known in detail to the individual or dropped.
But that does not apply to assessment of worth. The degree of
frankness and candour in the assessment of quality is quite remarkable
and patterns emerge, but it is for serious question whether that
degree of frankness and information would survive a judicial appointments
commission. I make it absolutely plain that I have not ruled it
out, and I have not ruled out consultation on it in this Parliament.
69. You have not ruled it out but you have not
necessarily ruled it in?
(The Lord Chancellor) That is correct.
70. Can we work on the assumption that between
now and the next time you appear before us, which presumably will
be towards the end of 1999, you will have a more definite viewpoint
on the issue?
(The Lord Chancellor) I will have to, will I not?
71. It will not surprise you that we have received
representation from the Bar Association for Commerce, Finance
and Industry which represents barristers employed inhouse in business.
It says that such barristers are almost never considered for appointment
as QCs and hence assistant recorders and recorders. Is there any
justification for that complaint?
(The Lord Chancellor) I shall tell you of the factual
position. Barristers and solicitors employed in the private sector
are eligible to apply to be assistant recorders and for appointments
at other levels in the judicial hierarchy. I welcome applications
and it is up to them to apply. Those applications along with others
are considered on their merits against the criteria for appointment.
But I am the first to agree that they are under a disadvantage
because they do not practise in the courts and therefore are not
assessed by judges and the rest of the consultation community
who come into contact on a daily basis with lawyers who practise
regularly in the courts. BACFI is also right to say that its members
are ineligible for silk because they do not have the appropriate
rights of audience. However, that is something that I shall be
addressing. It is incorrect in saying that silk leads to appointment
as an assistant recorder. There are many assistant recorders who
are not silks. But if BACFI wrote to me and made suggestions as
to how their cases could more fairly be considered within the
interview process, bearing in mind that these barristers come
from a different background of legal experience from the overwhelming
majority of people who apply, I would consider it with an open
mind.
72. You have been involved in some controversy,
which is unusual for you, over the question of the appointment
of magistrates. You have said in effect that it should be based
on social balance rather than political balance. All along there
has been a feeling that Labour supporters by the very nature of
the way matters are organised have not had their fair representation
among the magistracy. I do not think that that has been the subject
of any dispute because the previous government also tried to correct
that. Why should it be social balance and not political balance?
(The Lord Chancellor) I have not come to a view on
it. I have gone out to consultation on the matter. When I appeared
before you last year and was questioned on the subject, in particular
by Douglas Hogg, I answered in accordance with the prevailing
orthodoxy. The prevailing orthodoxy is that benches of magistrates
should be politically balanced. There was a Royal Commission in
the early part of the century which said that and another one
in the late 1940s which confirmed it. Conventional wisdom was
that there should be political balance. That is why people who
apply to be magistrates are asked how they vote. When I first
became Lord Chancellor frequently the advice given to me by officials
was that Conservative representation among the magistracy was
excessive in relation to the strength of the Conservative vote
or the Liberal Democrat vote. One might expect that to become
a more acute problem after a general election in which there had
been such a transfer of power away from the previous government.
I began to think as a result of representations made to me whether
in this day and age a person's political affiliation was an adequate
proxy for his social position. After all, there must have been
very many people who by any standards of middle class voted for
the Labour Party and Liberal Democratic Party at the last election.
Therefore, I asked myself whether political balance was any longer
a proxy for social balance. Surely, the purpose is not to have
a politically balanced but a socially balanced bench. Political
affiliation is no longer arguably a barometer of social position.
Surely, the objective must be to have benches of magistrates which
are a microcosm of the community that they serve. It also sticks
out like a sore thumb to ask a magistrate but no other applicant
for judicial appointment what his politics are. It causes a vast
amount of resentment. Having swallowed the prevailing orthodoxy
for a year, which I represented faithfully to the committee when
I last appeared here, I thought that perhaps there should be some
rethinking. That is all that has happened. It is a consultation
paper. I certainly have not made up my mind, and I would be interested
to hear any views expressed here on the subject.
73. There are parts of this country, for example
the north and north east, where the Conservatives are in the minority
and therefore there is a certain feeling about their representation
on the magistrates' bench, whereas in Sussex, Surrey and Kent
it is the Labour Party which tends to be much in the minority.
That imbalance remains, does it not?
(The Lord Chancellor) There are areas of imbalance
across the country whether one takes a political or a different
social measure. But any market researcher will tell you that political
balance is just not social balance today. There are very much
more sophisticated yardsticks, for example where people live.
It is precisely that kind of thing on which we are going out to
consultation. I emphatically have not made up my mind on the matter.
74. Obviously, the three main parties will be
consulted?
(The Lord Chancellor) Certainly. One would expect
them to express their views on the matter.
Chairman
75. Was not the reason for seeking political
balance that it was a rough and ready way—everyone accepted
its limitations—of achieving some kind of social balance?
No one could think of a better way of doing it.
(The Lord Chancellor) That is exactly the point. When
one had class-based voting—if one was working class one
voted Labour; if not, one voted some other way—that might
have been a rough and ready proxy for social balance, but that
is not so today.
76. I believe that it was the previous Lord
Chancellor who for the first time published the political balance
on the bench. The results were truly shocking. Areas like Wallsend
had Tory majorities. When I looked at the addresses in Sunderland
I found that six lived in the same road that had 46 houses.
(The Lord Chancellor) Political balance is still the
rule until it is changed. Advisory committees are urged by my
officials where there is a serious political imbalance by that
standard to do the best they can to correct it when appointing
people. But I make it absolutely plain that a merit test applies
there too. No one who acknowledges a Labour Party affiliation
would be appointed to the bench to help rectify the political
balance if not merited by the standards of appointment.
Miss Johnson
77. In the light of your comments about social
balance rather than purely political balance, have you any concerns
about the age balance on the magistracy? My experience is that
very few magistrates are appointed to the bench before they are
about 40. While one may perhaps regard 20 year-olds as inexperienced,
30 year-olds are also unrepresented on the bench?
(The Lord Chancellor) Certainly, one would like all
age groups to be represented in the magistracy. I thought when
I became Lord Chancellor that the working rule that applied in
my department—that after 55 a person should not be appointed
to the magistracy—was wrong. Because it was within my discretionary
powers I changed it. Not having passed that age myself, I was
unwilling to accept that a person was on the scrap heap at 55.
We have opened up the magistracy to the age group 55 to 65. Bearing
in mind the increasing rate at which people take early retirement
and who perhaps fret at it and would like to be magistrates, there
has been an encouraging response. Significant numbers of high
quality people have become magistrates within that age group.
That was my little contribution against ageism in the magistracy.
But I also accept the problem at the other end of the spectrum,
which is really your question. There is another difficulty which
is to encourage employers to give people time off work to serve
as magistrates. I think we all agree that to be a magistrate is
a very important civic responsibility, but we also try with all
the means at our disposal to encourage employers to recognise
that they should participate in that civic responsibility by giving
time off to people to serve as magistrates.
78. When are you planning to look at these issues
in relation to the discussion paper that you put out? I do not
know what work the department is doing with the Commissioner for
Public Appointments to encourage people to come forward for public
office such as this?
(The Lord Chancellor) I can see that the Commissioner
for Public Appointments would have a considerable interest in
this particular piece of consultation.
79. I want to move on to a slightly different
subject: freemasonry. What has been the level of response to your
request for judges and magistrates to make a voluntary declaration
of whether or not they are masons? Are you satisfied with the
level of response?
(The Lord Chancellor) I rather suspected that you
would ask me about that. I can give you a good deal of information
that may be of particular interest to the Chairman. The Government
accepted and responded to a recommendation of the Home Affairs
Select Committee. It has proved to be very controversial. A balanced
view was taken within government that because of public perception
that freemasons who were on the bench might have a tendency to
favour a freemason who came before it the public was entitled
to know whether individual judges were freemasons. At the same
time, the Home Affairs Select Committee recognised that there
was nothing that any of us would regard as evidence to show that
any judge had ever departed from his judicial oath because of
membership of the freemasons. It is all about public confidence
and perception. All full and part-time serving judges were invited
to declare their masonic status. This involved a distribution
of 5,290 declaration forms. At present there has been a very high
rate of response: 5,033. Of these, only 64 have declined to declare
whether or not they are freemasons. I regard that as representing
a highly satisfactory level of response. When one considers this
very high level of judicial response in a voluntary exercise it
will be interesting to see the level of response in the other
areas to which a voluntary register applies. But for myself I
think that this is a very good level of response, falling not
far short of 100 per cent. The number of judges who have declared
themselves to be freemasons is relatively small. At this stage
the figure stands at 247 or 4.9 per cent of those who have responded.
You probably want to hear about magistrates as well. Just over
26,000 questionnaires were sent to the lay magistracy for which
I am responsible throughout England and Wales with the exception
of the Duchy of Lancaster. Throughout the country as a whole there
are probably between 30,000 and 31,000 magistrates. However, I
am speaking only for my 26,000, if I may put it in that way. So
far 15,926 or 61 per cent have been returned via the advisory
committees. Returns are still being received so I can give you
only an interim report. So far 1,097 or 6.8 per cent of the total
received have declared themselves to be freemasons; 13,962 or
87 per cent have declared that they are not freemasons; 867 or
5.4 per cent have stated that they are unwilling to make a declaration;
and 2,036 or 12.7 per cent so far have failed to respond to the
questionnaire. My officials are busy contacting the advisory committees
which have not yet sent in a return. I believe that that is very
substantial compliance with what is a voluntary register. You
will know that the position in relation to future appointments
is that whether or not an individual is a freemason is irrelevant
to appointment but it will be a condition of future appointment
that the declaration be made.
1 See Annex A. Back
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