Examination of witnesses (Questions 80
- 99)
TUESDAY 25 JULY 2000
SIR HAYDEN
PHILLIPS, KCB, and MISS
JENNY ROWE
80. So I understand.
(Sir Hayden Phillips) I am just trying to check.
81. Have we got up to ten or 15 as far as that
is concerned?
(Sir Hayden Phillips) Women. There were nine as of
1 March.
82. Nine out of 98?
(Sir Hayden Phillips) As of 1 March.
83. Indeed. If we went back a couple of years
it would be less than that, would it not? You could describe that
as a form of progress, I suppose.
(Sir Hayden Phillips) Yes.
84. Ethnic minorities?
(Sir Hayden Phillips) None.
85. I wonder if there will be any difference
when we come to circuit judges, who amount to 516. Women?
(Sir Hayden Phillips) Yes, there are 39 women. As
of 1 March.
86. Ethnic minorities?
(Sir Hayden Phillips) Five. These figures are from
1 March.
87. Did you say five?
(Sir Hayden Phillips) Yes.
88. Right. District judges, including Family
Division, 379 currently. Women?
(Sir Hayden Phillips) 56.
89. Ethnic minorities?
(Sir Hayden Phillips) Six.
90. What do you believe is likely to be the
position in the next few years? Are we going to see any change?
(Sir Hayden Phillips) Yes, I expect we will see change
in both categories you mentioned. We have a system in this country,
as you know, which is not a career judiciary, but it is people
who change in mid career to sit on the bench, at whatever level.
For appointments at recorder level, which is the stepping-stone
to going on to the higher groups you tended to talk about, you
would expect people to have had experience as barrister or solicitor
for about 20 years. Therefore, what one has to do is to look into
the pool of available candidates, both to see the numbers in that
pool in the legal profession, at the right ages, of ethnic minority
and female lawyers, and on the best estimates available estimate
where we will get to in five or ten years. Now the Lord Chancellor
announced in his speech at this year's ceremony to create Queen's
Counsel, that we would conduct research on precisely that basis.
That we would make those estimates and we would publish those
estimates. That will give the Committee and all of us involved
a guide as to the extent to which we can expect over time those
percentages you have mentioned, and I have given you, to change.
91. Those who are not very keen on equality
usually peddle the line that we must always bear in mind merit.
Of course, no-one disputes that. Would you say there is any question
of a lack of merit amongst women and ethnic minorities practising
at the bar?
(Sir Hayden Phillips) No, I would not say that at
all. On the other hand, I would say that no-one has suggested
in this country that for the full-time judiciary the qualifications
should be that they should be representative of society. What
has always been said by all those concerned is that an appointment
on merit is the order of the day, but that clearly on this basis
we want it to become more representative of society over time.
There is a formal difference, of course, in relation to the lay
magistracy, where you have to pass the personal tests suitability,
and there is then a requirement that each bench should actually
be representative of society. So there is an interesting difference
here in the way in which a policy under successive Governments
have treated full-time judiciary and the magistrates.
92. I understand that but it is difficult to
understand that if there is no lack of merit amongst women who
have been practising at the bar -perhaps ethnic minorities because
of post-war immigration for a lesser time -but when it comes to
women who have been practising at the bar for some years, many
years indeed, when it comes to the most senior judges why do we
have a situation where there is not a single woman?
(Sir Hayden Phillips) The answer is what I gave you
earlier. The time-lags here are very substantial. You are looking
at a pool of people now, which in terms of senior female barristers
or solicitors, is still relatively small. If you look at those
who are ten years or 20 years younger, the number of women involved
will be much, much larger. So we are drawing now on people who,
let us say, are approaching or just over the age of 50, who would
have joined the profession between 20 and 30 years ago when, in
fact, it was much less open to women and to ethnic minorities.
93. But women were practising 20 or 30 years
ago. No-one would suggest that they were lacking merit in any
way.
(Sir Hayden Phillips) No, but I think you and I are
debating the size of the pool from which we can draw candidates.
I am saying the pool, at the moment, for immediate appointment
is much smaller than you would like it to be. I cannot change
that. What we can do is to see what we can do further down the
system.
94. Sir Hayden, you are not really telling us,
since you are in no way responsible over a period of years—
How long have you been in your present position?
(Sir Hayden Phillips) Since April 1998.
95. Exactly. A very brief time. You are not
really telling us that prejudice played no part in the fact that
women found it so difficult to reach the highest positions as
judges?
(Sir Hayden Phillips) No, I am not prepared to agree
to that because the Lord Chancellor has taken the view very clearly
in some recent appointments of senior women, which has evidenced
the fact that we are determined to make sure that prejudice does
not exist. What I am saying is that I believe it is perfectly
legitimate, as in other walks of life, to say that at the time
people wanted to enter the profession some years ago, that there
was probably more discrimination against women than there is now.
That is the reason I have some optimism about this.
96. Do you take the view, as a distinguished
female QC recently suggested, that there might be a case for targets
to ensure a larger representation of ethnic minorities within
the judiciary?
(Sir Hayden Phillips) I have indicated that the Lord
Chancellor intends to publish estimates. Targets in this area,
unless they are based on the most thorough research, are likely
to set up false expectations. I think we must do the research
first and then see whether the estimates we can produce are sufficiently
robust so that they can be turned into objectives, but having
said that, it seems to me there is a real conflict of logic and
principle here between the system in which you say, "Look,
all the appointments we make will be absolutely based on merit
without discrimination," and setting targets which are based,
as it were, on discriminating in favour of particular categories.
It is very difficult to escape from that dilemma, which is why
we have said that what we will try to do is to publish these estimates
and use them as benchmarks, as to how well we are doing in the
policy that the Lord Chancellor is pursuing.
97. What you have said, of course, could be
an argument against any form of targets at all in any field?
(Sir Hayden Phillips) Yes. I think there are certain
fields—and it is true in Government, it is true in the magistracy,
of which it is an objective of policy—directly to make the
people, the numbers of staff or appointees, more representative
of society. What I am saying to you is that the present policy
in relation to the full-time judiciary is not that. It is to appoint
on merit but to have other measures that try to make it more representative
over time.
Mr Fabricant
98. Is it not the case that some years back
Jewish people would have been regarded as an ethnic minority,
and is it not the case that without targets but basing appointments
on merit, that they have reached the highest positions in the
judiciary and are a significant proportion of the judiciary?
(Sir Hayden Phillips) That is a true statement.
99. This happens with time.
(Sir Hayden Phillips) I think there are two important
things here. The first is that we do get a better understanding
of what the size of the pools are of the eligible population.
Secondly, that we do not get to a position in which it is only
those who can afford to enter the legal profession who do so.
One of the great strengths of my generation, and that of the Lord
Chancellor, is that lots of people from relatively modest backgrounds
were able to enter a profession which required you not to earn
very much money at a crucial time in your mid 25s, possibly to
your early 30s, when you needed to do so. I think one of the most
important things that we can make sure is that in every possible
way the legal profession itself is actually helping to ensure
that people of modest means, who are able, can join in.
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