Examination of witnesses (Questions 100
- 119)
TUESDAY 25 JULY 2000
SIR HAYDEN
PHILLIPS, KCB, and MISS
JENNY ROWE
Mr Stinchcombe
100. If I could declare my interests, at the
outset, as a barrister.
(Sir Hayden Phillips) Phew!
101. Taking you back to some of the questions
that Mr Winnick was asking about the proportions of appointees
to these higher judicial offices from both women and also from
ethnic minorities, your Department commissioned research in 1999
from Drs Malleson and Banda and they found this: "... the
most notable feature of the responses taken overall is the high
level of criticism of the appointments processes. The nature and
the extent of the concerns raised [by the respondents] ... indicate
a significant degree of dissatisfaction with both applications
processes amongst applicants and potential applicants." This
dissatisfaction was greater amongst solicitors than barristers;
female respondents than male respondents; from respondents of
ethnic minority background than white respondents. Pausing there,
that seems to indicate, does it not, that there is something amiss
with the procedures, which is leading to fewer people even applying
from those target groups.
(Sir Hayden Phillips) I think what that research gave
you, which were the collected perceptions of all those who were
interviewed, it indicated precisely what I think we should do—and
what we are trying to do -which is to make sure that the processes
are better explained. That the information available to people
is clearer. That the criteria for appointment are modernised and
brought up-to-date and made available to applicants. Also, that
they are dealt with individually and there is understanding of
what is going on. I found the contrast between that perception
and the findings of Sir Leonard Peach—that it was one of
the best systems that he had ever come across—to be extraordinary.
This is a job for the Department to do: to make sure that all
of those who wish to apply in the legal profession do know what
the process is, fully understand it, and so on. I am interested
to see that this year there has been a greater uptake both in
the silk competition and those for the bench, of people saying,
"Please can I be given feedback by the Department on why
I did not make it." That is a good sign. It puts the costs
up but, on the other hand, it means that we are genuinely communicating
with people whose perceptions might be rather jaundiced about
why it was they did not come through.
102. As a barrister, I know that until three
years ago I did not even know there was a potential to have an
interview for feedback on a silk application, so unknowing was
the profession. May I take you on to the concerns particularly
expressed: " ... the lack of openness, the continuing role
of patronage, the dominance of an elite group of chambers and
the need to be `known' in order to be appointed... " Those
were what they pointed to as weaknesses in the existing systems.
We are going to continue to have patronage in the appointment
of these silks and judicial posts, are we not?
(Sir Hayden Phillips) No, I think—
103. Who is going to decide?
(Sir Hayden Phillips) I would reject the fact that
we have a system in which the decisions made at the end of the
day by the Lord Chancellor is a system of patronage. He is an
accountable Minister, accountable to this Committee, accountable
to Parliament. He is not just putting in people because he happens
to know them. There is a widespread sense that somehow, because
we have a disciplined process of consulting people about people's
suitability, that it is somehow a system of patronage. That is
not the case. Indeed, this year we have gone further. We have
now said two things. First of all, people are going to give more
of their own references for us to take up, and not just those
with whom or before they have appeared. Secondly, in relation
to the recorder competition, the Lord Chancellor has concluded
that where someone appears, on the face of it, to pass the criteria
but has very few references from others who have seen the person
at work, that person nonetheless should be granted an automatic
interview. This enables us to start to make further inroads, particularly
in relation to solicitors who may not be regularly appearing in
court and, therefore, will not have captured comments from those
whom we consult, and also for some ethnic minority barristers.
These progressive changes, both in discipline in the system and
opening it up, are real. However, I make one other comment. I
know of no other appointment system which automatically makes
available the confidential information that it is given about
people's suitability. I think it is very important to remember
that when allegations are made of secret soundings, that these
things are not like that at all. It would be very difficult to
run any sort of disciplined appointments system if every proper
comment that was made against the criteria was open to the public
and to the individual.
104. I will come back to the secret soundings,
if I may, in a second. I just want to have your confirmation that
you do not believe that the continuance of a system, whereby the
Lord Chancellor personally makes these appointments, amounts to
the exercise of patronage?
(Sir Hayden Phillips) I do not believe that for one
moment.
105. You do not?
(Sir Hayden Phillips) After all, for the vast majority
it is does on the basis of application, interview, assessment,
recommendation, and so on.
106. For higher judicial posts?
(Sir Hayden Phillips) No, we are talking about the
vast majority of posts.
107. The vast majority of the posts, about which
I have been asking questions, have, as a first port of entry,
a successful application for silk.
(Sir Hayden Phillips) As the first port of entry they
have a successful application for the recorder competition.
108. Indeed, but how many high court judges
are there who have not taken silk?
(Sir Hayden Phillips) I do not know the answer to
that question offhand.[8]
109. It must be a very small number, if any
at all. So far as the applications for silk are concerned, to
what extent are the individual applicant's earnings as a barrister
taken into account?
(Sir Hayden Phillips) It is not a factor, which is
central in the criterion, but Len Peach suggested that we should
publish the information that is available to us, and we published
it for the first time this year.
110. You have, for far longer than that though,
routinely sought the information as to a barrister's turnover
on the application for silk?
(Sir Hayden Phillips) Yes, which gives you an indication
of the size of the person's practice. This will vary enormously,
depending on the jurisdiction you are in.
111. Is there a breakdown that the Lord Chancellor's
Department has had, of the average earnings of those who successfully
apply for silk and the average earnings of those who do not, across
various sectors of judicial activity?
(Sir Hayden Phillips) Yes, we have, and it was published
in April. We can give you that information.
112. Have you collected that information before
April routinely year by year?
(Sir Hayden Phillips) I am not sure we have actually
but we have certainly collected it over the last couple of years.
We published it for the first time this year.
113. Does it show a discrepancy, not only in
the various areas of practice, but also between genders and ethnic
groups?
(Sir Hayden Phillips) The information we published
does not.
114. One of the concerns I have is this: it
is certainly widely perceived amongst the practising bar that
it is critical to have earnings at a certain threshold before
your application might be successful. As a planning barrister,
as I used to be, it was routinely said that you had to be earning
a quarter of a million pounds a year before you would have the
Lord Chancellor's Department sit up and take notice. Would that
at all be close to the figure that divided the successful planning
barrister, and the unsuccessful planning barrister, in terms of
the applications for silk?
(Sir Hayden Phillips) I do not know about planning.
All I can say is that for the successful applicants this year
the income levels varied. At the bottom, £77,000 a year;
at the top, £550,000 a year; with a vast spread throughout
the range. That information relative to the jurisdiction helps
to tell you about where that person's practice is positioned.
Chairman
115. Is that income or turnover?
(Sir Hayden Phillips) That is what is described here
as "income level". I think that means their overall
fees. I do not know if that is a net figure.
(Miss Rowe) I think it is the gross.
(Sir Hayden Phillips) You are looking at the real
income being lower than that.
Mr Stinchcombe
116. The reason I am interested in it is because
if it is true that the Lord Chancellor's Department is not looking
for threshold earnings in order for a potential silk to make an
application, then it is imperative that that message be rammed
down the throats of all practising barristers and solicitors.
At the moment ten per cent of people do not apply because they
feel they do not earn enough. A number of others who have not
so ticked in that box may fall into that category—who, at
the moment, state the main reasons are either being too junior
or not having the practice. Clearly people do feel they have to
earn a huge amount money in many fields before they can even apply.
(Sir Hayden Phillips) From the facts I have given
to you, people do not have to earn a huge amount of money. It
depends where they are working. If you are a criminal barrister
and you are working on legal aid cases you are not going to be
earning vast sums of money but you may be a very high quality
person—many of those come through.
117. The perception is particularly damaging,
is it not? It will mean that talented barristers will not be doing
as much pro bono work; it will mean that talented barristers
will not be doing as much sitting; they may not be doing as many
other public duties; and it means they will be unwilling to take
sabbaticals because they will be trying to get their earnings
up to a particular threshold.
(Sir Hayden Phillips) You and I can absolutely agree
that it is very important that what I said is the policy, which
is that we get that message over to those applying.
118. I am obliged. Can I take you back to planning—only
because it is the area which I know most—if you are a planning
barrister you will not routinely be appearing in the higher courts,
you will more routinely be appearing in planning inquiries. In
virtually every big planning inquiry you will have a very wealthy
developer against a more modest local authority in terms of means
and quite often third parties with hardly any means at all. Each
barrister engaged in that inquiry will be undertaking exactly
the same professional duties in terms of presenting their case,
cross-examining and making closing speeches. The earnings will
be fantastically different depending on who you represent. If
there is a predisposed perception amongst barristers that earnings
are critical to a successful application for Silk, that will actually
skew who they are willing to do their work for, will it not?
(Sir Hayden Phillips) I hope that will not happen
but you may be right about that. I think the problem, this is
based on recollection, that the Lord Chancellor and I have considered
in relation to the planning Bar was the fact that a lot of people
appearing there regularly were not appearing before judges in
the conventional court setting, therefore there was a risk we
were discriminating against people simply because we knew less
about them. We went out of our way last year to actually extend
the consultation area for this and to find out more about those
concerned who applied. I think I am right in saying that we gave
silk to a larger number of people from the planning Bar this year,
as a result of a deliberate effort to try to make sure these people
were not discriminated against. On the issue of money, I agree
with you that there is clearly a message that we have to get over
about the relevance or irrelevance.
119. If we come back to the questions that Mr
Winnick was asking, one of the reasons women may earn less money
is because they have taken some years out for child care reasons.
(Sir Hayden Phillips) We would look at that. There
are people who come back to work part-time who are by definition
not going to be earning the same as if they were full-time. That
should not discriminate against somebody for getting this leg-up.
8 Note by witness: There are 8 High Court Judges
who have not taken Silk: Five from the Circuit Bench: Sachs, Astill,
Crane, Grigson, Sumner JJ. Three Treasury Counsel: Laws, Charles,
Richards JJ. Back
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