Examination of witnesses (Questions 320 - 339)
TUESDAY 3 MARCH 1998
THE RT
HON THE
LORD IRVINE
OF LAIRG,
QC and MRS
SARAH TYACKE
320. You make a very good case for judges, in that those
people who failed to meet the criteria that you or your successors
would set to become a judge would not be covered by the Freedom
of Information Act but they would be given this opportunity to
have an in-depth response to why they failed. However, that same
criteria is not offered to somebody who fails to gain British
Citizenship, and they do not have any rights under freedom of
information either. I would like to see things fair for everyone.
(Lord Irvine of Lairg) So would I, but if you
are concerned with the fairness of the immigration process you
must address your questions to the Home Secretary.
Miss Johnson
321. May I take this back to judges, because you have
had your question on judges and I have not finished with judges.
You are talking about the way the process works. People are not
aware, presumably, of who is being consulted about their futures,
or how those people are selected. There is the risk, on the sort
of view that you have given of this, of it either being promotion
by opinion poll, as it were, amongst your peers, or, in a sense
- even worse, perhaps - that the club becomes a self-reinforcing
body and that only people who fit the same criteria as existing
members of the club ever make it through to the next stage of
the promotion ladder. I think the public would have quite considerable
concerns, on both those fronts, that sometimes it does not appear
that the judiciary is moving forward with the country, but, in
some cases, has lagged behind. Do you not think that it would
be welcome for them to understand more about the way this process
works and for people to have access to it in more detail? You
have said that you felt it would be exempt under freedom of information.
Under which aspect of the provision would it be exempt?
(Lord Irvine of Lairg) Confidence.
322. Information given in confidence?
(Lord Irvine of Lairg) Yes. Let me respond to
what you said earlier. Most people will know who are being consulted.
It is obvious to most practitioners, who want to be considered,
who the people who are likely to be consulted about them are.
Listening to this discussion today, I am very hospitable to the
idea that when people apply, or when people are aggrieved, they
can put forward names of people whom they would like to be consulted
about their merits - and they very often do. Almost invariably,
the people they want to be consulted are being consulted anyway.
Of course, you could formalise this more, and it is something
that I am actively looking at. I have spent an enormous amount
of time, in fact, in studying the cards - as we call them. For
every relevant person there is a card of material, noting assessments,
going back over many, many years, and the names of the persons
giving the assessments are all recorded. Speaking for myself,
I have been genuinely impressed by the width of it. But any system
can be improved. If additional names can be put forward by individuals
whom they would like to be consulted then the system can accommodate
that and that should be formalised. Do not forget, of course,
that at the level of all judicial appointments up to Circuit Judge
- which is the great majority - there are interviews as well as
assessments, and the interviewing panel includes lay people. I
sometimes find it very, very interesting indeed to compare the
recommendations of the consultation committee community as against
the assessment of the interview panel. You have to weigh the one
against the other.
323. Do you accept that the existing process has not
always delivered judges of the quality you would like to see in
all cases?
(Lord Irvine of Lairg) No system is perfect, and,
of course, judges are not perfect, by any manner of means.
324. I did not ask whether judges were perfect.
(Lord Irvine of Lairg) I do think, on the whole,
that high quality people do get through. I can tell you that I
have some concern that some people of high quality choose not
to become judges when I would like them to become judges. This
is not a vast problem; I think the overwhelming majority of practitioners
do have an ambition to become judges, if they can, and, hopefully,
the best people win through. I hope you are hospitable to my idea
that an Ombudsman might provide a quite considerable guarantee
of fairness, because he would, of course, have to have access
to these cards.
325. Obviously we would welcome seeing some more detail
on that. Can I ask you, finally, on the content of the annual
report, what, at the moment, you envisage that encompassing, and
who you plan to consult about what the nature of that report should
be?
(Lord Irvine of Lairg) I would envisage that it
would involve descriptions of how many people applied, how many
people succeeded, a summary of the capacities of those who applied,
the qualities that they had against the criteria for success -
giving figures of those who won through. One would obviously want
to know how many people from ethnic minority backgrounds applied,
how many women applied and how many succeeded; we would be interested
(and I am sure you would be interested) to measure that against
the proportion of the relevant profession as a whole that people
from ethnic minority backgrounds represent, women represent, and
so on - the fullest possible information. I doubt if we would
disagree on any point about what ought to be in this report.
326. Will that include retrospective comparative statistics
for the previous three years?
(Lord Irvine of Lairg) It could. That would be
more burdensome but I think it would be more helpful, in fact,
because it would be of interest to see if changes were happening
over time. I hope, for example, that over time more women will
become judges, more women will become QCs and more people from
ethnic backgrounds will become judges. I think a comparative study,
looking backwards over a period of years, would be useful, yes.
327. Will it include details of how the lay assessors
are appointed?
(Lord Irvine of Lairg) Yes, absolutely. The whole
system.
328. What is that process?
(Lord Irvine of Lairg) How lay assessors are chosen?
They are chosen by an advisory committee[2],
and I am not aware of any complaint about the quality of the individuals
who sit as lay assessors.
329. I am sure most of us have no idea who they are.
We have just produced a report on public appointments and, obviously,
a number of departments use various people in the process of making
their appointments, but we are concerned to see that they are
as independently representative as possible.
(Lord Irvine of Lairg) I entirely agree.
330. I have no idea about yours.
(Lord Irvine of Lairg) Perhaps you will allow
me to write to you on that, and give you as detailed an answer
as I presently can. I would also envisage that that material would
appear in the report.
Chairman
331. Before I turn the questioning over to Richard Shepherd,
I would like to ask you one question following on from Melanie
Johnson's questions, namely, if you did produce a report in the
spirit of openness and transparency about how the judicial appointment
system was going would it also include information about the termination
of judicial appointments following the recent termination of Mr
Justice Harman when you were able to tell him that you did not
know how you were going to do without him but you were going to
to give it a damn good try from next Monday? Would you envisage
being able to state to judges what the minimum standards you expected
from them were and if they fell below those standards consistently
it might be the Mr Justice Harman treatment for them too?
(Lord Irvine of Lairg) First of all, I think you
have to realise that the Mr Justice Harman experience was an extremely
exceptional one.
332. We should all be grateful for that.
(Lord Irvine of Lairg) We should be grateful for
that, of course and I am particularly grateful for that. The important
point, of course, is that Mr Justice Harman resigned, he was not
sacked. Plainly his judgement was, after the decision of the Court
of Appeal which criticised him so strongly for sitting so long
on a reserved judgement, that he ought to resign. There is no
doubt about it that he arrived at the perfectly right view. The
public are entitled to see very high-grade service from the judiciary
and on the whole they do. The glory of our system actually, which
compares so favourably with many countries in the world, is that
a great majority of judgements are given at the end of a case
extempore by judges and not reserved and that applies to the Court
of Appeal dealing with much more difficult cases as much as to
trial judges. It is a remarkable achievement but Mr Justice Harman
fell down on these standards and did the right thing and he resigned.
Mr Hancock
333. Would you have sacked him?
(Lord Irvine of Lairg) I have no power to sack
him.
Mr Shepherd
334. Lord Chancellor, your modesty comes as rather a
surprise in the list of disclaimers that you gave before coming
here to give evidence in terms of the departmental responsibilities
of the individual Ministers but as the Prime Minister's "big
cheese" on constitutional reform can you help me with something
that has been puzzling me in respect of the Wales Bill.
(Lord Irvine of Lairg) The Wales Bill?
335. Yes, I understand that you fixed matters and clause
79 says that an Assembly member is a crown servant for the purposes
of the Official Secrets Act, 1979. What principle underlines that
concept?
(Lord Irvine of Lairg) I think I will write to
you on that[3]. I am not
going to attempt an extempore answer on that.
336. It does not require a great deal of thought in one
sense.
(Lord Irvine of Lairg) You would know the answer
if that is right.
337. I am trying to tease out of you, having sat in the
Committees that try to arrange these constitutional arrangements,
why it was that one picked upon a democratically elected assemblyman
to be subject to the Official Secrets Act. It must have puzzled
you as it went in front of your Committee and I wondered what
was the justification or how does one reconcile this with any
democratic principle?
(Lord Irvine of Lairg) I will be absolutely frank,
I have no live recollection of the specific point arising in the
Committee at all. It will have emerged in the Bill and I will
have found out the answer by this afternoon and I will write to
you.
338. I am grateful for that. What I really wanted to
ask you about was the concept of public interest in the Official
Secrets Act and what I wanted to try and get an understanding
of was the relationship between public interest as set out in
the White Paper and the kind of public interest that the courts
have long applied under the law of confidence. It is the relationship
really between those two things. In particular, will it be possible
for an applicant to obtain exempt information which would normally
be protected from disclosure if it reveals that serious misconduct
has taken place or there is a serious danger to the public?
(Lord Irvine of Lairg) You are referring of course
to the iniquity rule of common law and the rule that you cannot
withhold disclosure of information which it would be in the public
interest to disclose because it would demonstrate misconduct or
malpractice, particularly in Government. I have no reason to believe
that any different conclusion would be arrived at under the Freedom
of Information Bill. It is quite obvious that personal privacy
yields to the public interest in exposing wrong-doing.
339. That is the narrow point of wrong-doing but we have
a harm test in the Official Secrets Act of course.
(Lord Irvine of Lairg) Yes.
2
See Appendix 2, p. 104. Back
3
See Appendix 3, p. 107. Back
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