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2 Feb 2000 : Column 228WH

Peach Report

12.30 pm

Mr. Andrew Dismore (Hendon): I should preface my remarks by declaring an interest, as a solicitor--but I am sure that my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department will be pleased to know that I have no immediate plans to apply for judicial appointment. I suspect that my right hon. Friend the Lord Chancellor would be unlikely to appoint me even if I were to apply.

I certainly do not intend to repeat arguments that I have made before--on what has become quite a well-worn issue--in debates on the Access to Justice Act 1999 and, in the past year, on the number of judges, but it is important that we should put Sir Len Peach's report in context. The context includes the need to maintain judicial standards and to maintain impartiality and independence, particularly with the advent of the Human Rights Act 1998 cases that are likely to be appearing before the courts: cases on devolution; the increasing use of judicial review; straightforward political cases, such as that of Pinochet; and wider issues of judicial interests dealt with recently by the Court of Appeal.

We have to try to obtain a more representative Bench, reflecting society. It is a disgrace that, currently, only seven of 98 High Court judges are women, and that none of them are from an ethnic minority background. Since May 1997, of the 85 judges appointed, fewer than 10 per cent. were women, and only one judge was from an ethnic minority background. There is also a real disparity in appointments between solicitors and barristers.

Against that background, we shall have to do much to restore public confidence. Public confidence is currently at an all-time low, as evidenced by last year's research by the Nuffield Foundation showing that the general public view judges as being overwhelmingly out of touch.

I certainly welcome the establishment of the inquiry by Sir Len Peach into judicial and Queen's Counsel appointments. The Lord Chancellor must be congratulated on making the report possible--although the inquiry will have to be given two, rather than three, cheers. It is a pity that Sir Len's terms of reference did not include an opportunity to examine some of the more structural and fundamental problems in appointments. Nevertheless, I very much welcome Sir Len's work and the opportunity that I had to meet him and contribute my views to the debate.

The scope of Sir Len's report is important. For the first time, there was a clear recognition of the distinction between the skills needed for advocacy and those needed to be a judge. I was very pleased to read the comments of my right hon. Friend the Lord Chancellor, in his press notice, welcoming Sir Len's report:

My right hon. Friend went on to say:

    "The skills and experience needed to be a judge may perfectly well be shown by a successful litigation solicitor as by a leading advocate".

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    I should add parenthetically that, in the new world of the Woolf reforms and the new civil justice rules, I suspect that, certainly when it comes to case management, solicitors may have more of the required skills than barristers do.

As for Sir Len's detailed recommendations, he starts off by tackling the most contentious issue: secret soundings. I know that my hon. Friend the Minister denies that secret soundings exist--he said so in answer to a parliamentary question; he prefers a rather longer definition of the process--but, perhaps simply as shorthand, I may use the term. I think that we agree on what we are talking about, even if we do not necessarily agree on the terminology.

Sir Len has not tackled secret soundings head on, but operated within the context of his terms of reference. Nevertheless, he has presented some ideas to mitigate some of the worst effects of the process--or as he describes it, to level the playing field--by suggesting that applicants could nominate their own referees, whose opinions would be weighted accordingly in the overall scheme of things. It is also important that secret soundings documentation will now concentrate much more on the skills requirement of the post, rather than on hearsay gossip, as previously feared.

I was very pleased to see Sir Len taking on some very experimental and far-thinking ideas--particularly his suggestion to establish an assessment centre, where putative judges could be interviewed, and where there could be group exercises and discussions, such as in-tray equivalents, tests, presentations and the need to train assessors for those purposes.

I particularly welcome Sir Len's proposal on psychometric competency testing, to ensure that those whom we appoint to judicial office are temperamentally suited to the position. As one who has occasionally appeared in cases in which I may have questioned the judge's personality, I very much welcome the proposal. Moreover, as one who made the suggestion to Sir Len, I am pleased that he has taken it on board.

I ask the Minister whether the Government will take on board the suggestion to establish assessment centres and testing. If they accept the suggestion, when will centres be established?

I have long advocated the establishment of a judicial appointments commission, as has the Labour party, over the years, in various policy documents. I am therefore pleased that Sir Len is proposing establishing a commission for judicial appointments. However, it is not exactly what I had in mind, and I concur with the Law Society's views on the matter. The commission should have the role of making or recommending appointments to full-time and part-time judicial posts. Commissioners are to be involved in replacing the lay element and in auditing processes. They are also to serve on selection panels, and to be involved in the important function of handling grievances and complaints.

Nevertheless, the fundamental problem with the current system which Sir Len identified remains: the lack of confidence felt by many people in the overall system, notably the consultation system and the judiciary's dominance as consultees.

Sir Len also recommends that the commission should supervise the selection process for silks. It is not quite clear whether the Lord Chancellor will take on board

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that recommendation, bearing in mind that he has immediately accepted the other recommendation. If selection of silks is to be supervised by the commission, it would be useful to know whether the commissioners will be in place for this year's silk round, to provide that additional safeguard.

I was very pleased to see that Sir Len paid great attention to the need for appraisal and self-appraisal by judges. He said--and I agree:

Sir Len also praises the experimental scheme on the Wales and Chester circuit. I pay personal tribute to my hon. Friend the Minister, who has taken great interest in promoting that initiative. I shall be very interested to hear whether he will take on board Sir Len's recommendation that there should be a national roll-out of the scheme, and, if so, when he thinks that that might happen. My experience in private practice is that appraisal and self-appraisal--being on both the receiving and dishing-out ends, though that may be putting it too strongly--are a very useful process, both for personal development and for the career development of oneself and one's staff.

We should not confine appraisals to part-time judges and new appointments, but should find a way of extending the process to more of the current full-time judiciary. I realise that there may be constitutional objections to such a proposal, and I am sure that there would be objections to it by individual members of the judiciary who may not have undergone the process when in practice; but we should at least give more consideration to the proposal.

I am concerned about Sir Len's views on equal opportunity, particularly in relation to gender and race. He identifies many of the problems very well, but does not necessarily propose the right solutions. He mentions the excellent work done by the joint working party on equal opportunities in judicial appointments and silk, and it would be very helpful if the Lord Chancellor's Department responded in detail to that body's 42 recommendations, some of which were dealt with by Sir Len.

I think that, initially, we should try to address the issue by extending parts III of the Sex Discrimination Act 1975 and the Race Relations Act 1976 to appointments to the judiciary and Queen's Counsel. My right hon. Friend the Home Secretary has said that forthcoming legislation on the public sector will be extended to include indirect discrimination. It would be very worth while if such provision were extended also to those appointments.

I also welcome the commissioning of research by Dr. Kate Malleson into some of the factors that impact on applications from women and ethnic minorities. Perhaps my hon. Friend could give us a progress report on that research and tell us whether it will be made public when it is finished.

We tend to overlook discrimination on disability grounds, but it is taken up by Sir Len. I should have focused on it more in the general contributions that I have made in previous debates. Sir Len recommends

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that the Department's informal guidelines be made public. I hope that my hon. Friend will confirm that he accepts that.

Sir Len also identifies the problems facing practising solicitors applying for judicial appointments, particularly part-time appointments, which are essential to allow the putative judge to get a taste of what is involved and to see whether they are up to the job. Solicitors face various practical hurdles with such part-time appointments, primarily owing to the need to maintain a practice and all the overheads that go with that. One's partners do not always welcome a request to be away for a few days at a time. We need to find ways of overcoming that problem.

I am also concerned about Sir Len's comments about the appointment of Queen's Counsel. My views on the subject are widely known and I do not want to rehearse them in detail. Sir Len repeats a suggestion previously made by others--that silk

I am also concerned about the heavy emphasis on fee earnings, without the balancing factor of pro bono work. Sir Len recommends that a table of fees for successful candidates be published annually. I have achieved that through parliamentary questions over the past couple of years. If the Lord Chancellor's Department does not publish the information in another way, it can expect further parliamentary questions from me.

I welcome Sir Len's report as a contribution to the debate. It is a pity that he was not able to carry out a root and branch investigation into the issue and come up with more fundamental conclusions, but the report is a worthwhile effort to improve the existing system. It may not be an overflowing cornucopia of structural solutions, but the Peach report is at least a modest fruit bowl, with some plum ideas to improve the existing arrangements. It stresses the qualities required of judges and proposes more balance for the consultation arrangements.

Sir Len has come up with some excellent ideas for experimentation to improve the assessment and appraisal system and has strengthened the lay element through the judicial appointments commission--sorry, the Commission for Judicial Appointments. I am not sure why the language has been changed. Perhaps it is to draw a distinction with the wider public debate. He has recognised many of the equal opportunities issues, even if he has not necessarily come up with solutions. The report provides a base that I hope can be used in future to lead to more fundamental root and branch reforms.

12.43 pm

The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): I congratulate my hon. Friend the Member for Hendon (Mr. Dismore) on

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securing the debate and on all his work over the past few years in bringing this important issue before the public and ensuring that we have a vigorous debate on how our judges are selected and on the merits of the status of Queen's Counsel. He knows that the Government do not entirely agree with his views on the best way of organising those important matters, but we are very grateful for his diligent and assiduous work in ensuring that they remain at the forefront of public debate.

Judges perform a vital role. They are a crucial element in a society that depends on the rule of law. In arbitration, judicial review or damages cases, judges make important decisions that can directly affect the lives of citizens. Therefore, the appointment of judges cannot be left to chance. The judicial appointments process must be capable of identifying the best candidates through fair and open procedures and it must reinforce the principle of judicial independence.

There have been many developments in the judicial and QC appointments processes in recent years, in particular the move to open competitions for most appointments. I know that my hon. Friend and others have strongly welcomed that. The Lord Chancellor is constantly seeking to improve the procedures. In July 1999, he asked Sir Leonard Peach to examine them, to see if any further steps could be taken to improve their openness and accountability. Sir Leonard was given unfettered access to the procedures and to individual records, and he held 40 meetings with groups and individuals to obtain a range of views. He has had a long and distinguished career in personnel at the highest levels and brought his unrivalled experience to bear in his scrutiny of procedures. Until recently, he was Commissioner for Public Appointments. In that role, which was independent of the Government, he monitored, regulated and provided advice on departmental procedures for ministerial appointments to various public bodies. We were confident that he would apply his objectivity and expertise and provide an impartial assessment of the judicial and QC selection procedures.

The Lord Chancellor warmly welcomed Sir Leonard's report when it was published on 3 December 1999 and said that he would act promptly on the central recommendation of appointing a Judicial Appointments Commissioner and would consider Sir Leonard's further recommendations in detail, along with other comments and reactions to his report.

Sir Leonard highlighted the potential confusion between appointment as Queen's Counsel and appointment to the Bench. The Lord Chancellor welcomed Sir Leonard's clear distinction between the criteria for QC and judicial appointments. The rank of QC is awarded to the leading junior advocates of the day, including solicitors. The Lord Chancellor readily acknowledges that the best advocates do not necessarily make the best judges, as my hon. Friend has said. That was made expressly clear in the press notice that accompanied the report.

Today's judges must be able to meet the demands of managing cases and need the personal skills required to run a court, as well as being first-class lawyers. In the past, there may have been too great a tendency to promote the best advocates from the Bar to the Bench, without paying sufficient attention to the possibility of promoting others of equal skill and competence who

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undertake slightly different functions in the legal system. The skills and experience needed to be a judge can be found in a successful litigation solicitor as well as a leading advocate. That has already been proved by the appointment of solicitors to the Bench. The Lord Chancellor wants to appoint the judges with the best potential, regardless of whether they come from the ranks of barristers or solicitors. I am grateful for the opportunity to make that clear.

My hon. Friend has repeated his concerns about what he calls secret soundings. He suggested that Sir Leonard did not tackle the issue head on. I must respectfully disagree; he looked at it carefully. I do not like the expression "secret soundings". I understand the concerns, but it would be more accurate to talk about confidential assessments of a candidate's suitability. Sir Leonard acknowledged that the consultation process is controversial, but, having looked at it in detail, he said:

Assessments are provided in confidence, but that is an inevitable part of any high-level appointments process, whether to the Bench or to other high-level positions. Candidates for the judiciary are told which judges and members of the profession will be consulted and are asked to name others who can assess their suitability. I welcome that development, as does my hon. Friend.

The assessments are provided in writing and are now made against the criteria for appointment. The Lord Chancellor requires consultees to be objective in their assessments and to provide evidence to support them. He disregards any comments that do not appear to be based on that approach and no one person's assessment is or could be decisive. There is nothing to prevent consultees from volunteering information directly to applicants about the assessments they have made of them, but that must be a matter for the consultee alone to decide.

We must accept that in any open competition for judicial posts, more people will be unsuccessful--and therefore to some extent disappointed--than successful. Unsuccessful candidates are able to talk to officials in the Lord Chancellor's Department who will give feedback on the assessments made. The feedback includes, on a non-attributed basis, information about matters contained in the assessments. If the candidate was interviewed, the feedback will also cover how he or she fared in the interview. It is important to note that many candidates take up that offer, and last year about 500 feedback interviews were conducted. Sir Leonard Peach found the feedback system to be "a remarkable feature" and "most impressive". I hope that my hon. Friend--who is also learned--will accept that that is an important part of the confidential assessment process.

Sir Leonard also says that there needs to be confidence in the relevance of the information being provided and that it is based on evidence and not on hearsay. Although that is the aim--and assessments from consultees are already sought on forms which ask

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for ratings against the criteria and for narrative evidence--Sir Leonard advises on improvements to the system. The Lord Chancellor is happy to take those on board promptly.

My hon. Friend rightly mentioned the additional recommendations for a one-day assessment centre and certain psychometric tests. The recommendations are that we pilot a one-day assessment centre and that psychometric and competence tests be commissioned. The Lord Chancellor intends to take forward those two recommendations together. He appreciates that an assessment centre is to some extent the Rolls-Royce of selection methods and recognises that to set up a one-day pilot assessment centre where psychometric and competence tests will form part of the selection process will be a considerable step forward, entailing considerable effort. None the less, it is important to get it right and we do not envisage being able to take assessment packages off the shelf. Appointing for judicial office is a unique and important function.

The assessment centre, as envisaged by the Lord Chancellor, will have to be tailor made for judicial appointments, so there will have to be a considerable amount of work over the next one to two years to set up the pilot. However, I can assure my hon. Friend that the matter is being taken forward.

The Lord Chancellor has accepted in principle Sir Leonard's proposal that there should be a Commission for Judicial Appointments. He envisages appointing this year a first commissioner, who will be supported in due course by a team of deputy commissioners. The commissioners will be drawn from a range of backgrounds and the commission will undertake the tasks outlined by Sir Leonard.

I can tell my hon. Friend, as he raised the matter specifically, that this year's silk round--that is, those who are to be notified at Easter this year--will not have the benefit of the Commission for Judicial Appointments, but we hope that all open competitions for the judiciary later in the year and next year's silk round will have the benefit of the commission.

Mr. Nick Hawkins (Surrey Heath): I thank the Minister for giving way. Will he confirm that the terms of reference of the judicial appointments commissioners will be published and that it is his and the Lord Chancellor's wish that there will be no element of political correctness or any artificial concept of gender and ethnic balance? We want the very best people for all these appointments. Will that be clearly set out in the judicial appointments commissioners' terms of reference?

Mr. Lock: I can certainly assure the hon. Gentleman that the terms of reference for the Commission for Judicial Appointments will be published. As for political correctness, I assure him that we are looking for the best candidates for the judiciary and those candidates will be drawn from those who apply.

I accept that we have only 10 women on the High Court Bench. To some extent, that is a reflection of entry into the legal profession some 20 to 25 years ago, retention within the legal profession, and the processes of advancement within the private legal professions that have brought about the circumstances where those who

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apply with suitable experience and eminence come from a relatively limited pool. However, as I said earlier, the Lord Chancellor remains concerned that that group should be identified according to their true characteristics and experience of judicial office, which is much wider than just the best advocates appearing on the front row in the courts today. I hope that that will expand the pool and result in more people applying.

Mr. Dominic Grieve (Beaconsfield): Will the Minister give way?

Mr. Lock: Certainly.

Mr. Deputy Speaker (Mr. Nicholas Winterton): Order. Although the Minister can indeed give way, in such a debate as this he is under no pressure or obligation to do so as it is a debate between one hon. Member and the Minister. However, as the Minister has given way, I hope that the intervention will be brief.

Mr. Grieve: I shall indeed be brief. Will the Minister confirm that the statistics available would suggest that the pool is expanding and that, for instance, the number of women who are likely to be eligible to apply for the judiciary will be much larger than it was 25 years ago and is increasing?

Mr. Lock: I can certainly confirm that the pool is expanding. Hon. Members may be interested to know that there are now one solicitor, 10 women, but unfortunately no High Court judges of ethnic origin. At the lower levels, the figures are more encouraging. Of 634 appointments filled by means of open competition in 1998-99, 23.5 per cent., or just under a quarter, were women; 5.4 per cent. were of ethnic minority origin; 46.4 per cent. were solicitors; 37.1 per cent. were junior barristers; 5.7 per cent. were Queen's Counsel and 10.9

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per cent. were non-practising lawyers. Although there is a good spread across judicial appointments generally, I accept that we still have work to do at senior levels.

My hon. Friend has raised a large number of issues and I anticipate having to write to him on those that I do not have time to cover. I am happy to confirm that the Kate Malleson research into race and sex discrimination, which covers an important matter, is due to be published this month and of course will be made public.

My hon. Friend also referred to appraisal--an important but delicate issue. The pilot in north Wales involving deputy district judges is impressive and appears to be going well, but it would not be appropriate to roll out any pilot until we were confident that we had managed to assess its full impact and learned lessons from it--otherwise it would not be a pilot.

I can assure my hon. Friend that we approach appraisal very much for the benefit of the people being appraised and not as a quasi-disciplinary stick to be held over part-time judges as a reason for not appointing them. It is all part of the process of ensuring that we get the best judges available for our courts. Appraisal issues in respect of the full-time judiciary are very much more delicate and must, in essence, be a matter for the judges themselves, without straying into their judicial independence. As my hon. Friend realises, I am sure that there are delicate issues of constitutional propriety involved.

In essence, Sir Leonard's report gave the team in the Lord Chancellor's Department very good marks for their work. He said that the overall impression of the Department's work was one of thoroughness, competence and professionalism. However, there are clearly areas where we can improve and we are grateful to Sir Len for highlighting them. The work will be carried through quickly and thoroughly. It is a very important area and we must make sure that we get it right. I am grateful to my hon. Friend the Member for Hendon for introducing the debate and I hope that I have answered many of the points that he has raised.

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