Select Committee on Home Affairs Minutes of Evidence

Examination of witnesses (Questions 120 - 139)



  120. Can I take you back to the secret soundings that you mentioned at the outset? Clearly insofar as there were secret soundings up until last year, your last answer about the planning Bar indicates it was not working terribly successfully because the Lord Chancellor simply did not know enough about who was good and who was not.
  (Sir Hayden Phillips) I have given you two examples of areas where I think we have made improvements. One, if you take the case of the planning Bar, which I am doing from recollection, we deliberately tried to find out more about people who were not appearing in the regular courts. We would do that for any jurisdiction now where we felt that was the case. The second area is—this is where it is very important—where you appear to pass the criteria but you do not have a lot of comments, a lot of referees. We would say, "If that is the case we will give them an automatic interview because that will then help us, particularly in relation to areas such as ethnic minorities who might not be as well known in the system". I am accepting that it is perfectly possible to find areas where the process can be criticised. What I am arguing is that where we find those criticisms and where we find they are legitimate, we have moved to try and put the procedures in place that ease the criticism and help us to be fairer.

  121. The secret soundings which you talk about are, indeed, secret and they are soundings. They tend to come from organisations such as Bar associations and therefore must come from practitioners who are competitors of the applicant in the competitive job place. Do you not see that that inherently raises a question mark as to the acceptability of such a process?
  (Sir Hayden Phillips) I do not think so because they are not secret but the comments are confidential, as in any proper disciplined process. Secondly, they are not soundings. They are comments which are carefully made against a detailed set of criteria in which recent experience and real personal knowledge of the applicant are absolutely crucial. As a result of the Peach Report these criteria have been very much sharpened up and well defined. We expect careful written comments. They are neither secret nor are they soundings.

  122. If any practitioner made an application for silk and another practitioner put in a poisonous word about him, under the existing system would the applicant ever know what that was or would he ever be given an opportunity to rebut it?
  (Sir Hayden Phillips) That is very pejorative. If people put in poisonous words my own view is they should be thrown into the waste paper basket. If, on the other hand, someone puts in something about a criticism of someone's performance and it is expressed in sensible terms, then in the feedback interview that is given the person should be told what the burden of that comment was but without naming names.

  123. He would never be given the chance to challenge that comment in the application process? He would only be told about it after the application process had been gone through?
  (Sir Hayden Phillips) What are you suggesting we do?

  124. I am simply asking a question. The reason I am asking it is that this report that you commissioned said that one of the principal concerns was the lack of openness. What we have, if you like, is a judicial system that fails in one respect the test of natural justice, because you are not allowed to know the case against you and you are not given an opportunity to rebut it before a decision concerning your future livelihood is taken.
  (Sir Hayden Phillips) You are suggesting a process—unlike any appointment system I am familiar with—which would send the comments that have been made to applicants before interview or assessment so they had a chance to comment on them. I do not know of any arrangement where that happens. What we are doing is actually very carefully and seriously done, which is to make sure that all those who wish to have feedback are given the burden of the comments so that they can take account of them in future applications.

  125. If I applied for a licence to be a market street trader, a taxi driver or anything like that, I would be entitled to know the case against me before that licence was refused. If you apply for silk however, you are not entitled to know the case against you, and that case can be made in secret by your competitors.
  (Sir Hayden Phillips) If I may say so, you are expressing this in terms of the normal adversarial position in a court and we are not engaged in that here. The idea of a case against you is an incredibly overblown thing. What you have got is a series of carefully constructed written comments on individuals, some of which will be favourable, some of which may be less favourable, and that is true of all appointments systems with which I am familiar. I think that what you are implying is that somehow this whole process should be conducted as if it was an adversarial process between those who send in references and those who are referred, which I find a very strange suggestion indeed. If that is what is meant by making it more open, I am not entirely sure that any Lord Chancellor could actually operate a system of that sort and retain people's confidence in the confidentiality of the process.

  126. You are implying things into my words which I have not expressed. I make one express suggestion to you. If, in the appointments process, one of the soundings indicates that there is a black mark against a particular applicant, would it not be fair for that applicant to know that had been said and to be given a chance to make comment upon it before a decision is actually taken?
  (Sir Hayden Phillips) If that particular reference was the sole thing that had enabled that person to fail, and that will not be known until the end of the process do not forget, it will not be known during the course of it, then I think what we do now is absolutely right—I do not see the argument for going further—which is to explain to the person at the end of the day what that was.[9]

  127. Thank you very much.
  (Sir Hayden Phillips) Just one comment. I am told—I hope this is correct—that the Lord Chief Justice never took silk, Lord Woolf.

  128. That is because he was a Treasury devil and a Treasury devil does not take silk.
  (Sir Hayden Phillips) I was not making that a point other than I found it interesting.

Mr Winnick

  129. In the screening process in the Department a lot of work goes on presumably when the appointment of judges is being considered as well as QCs well before the Lord Chancellor sees the necessary papers. Would that not be right?
  (Sir Hayden Phillips) If you mean that information is screened out from the Lord Chancellor, the answer to that is no.

  130. No, I am not suggesting there is some conspiracy to deprive the Lord Chancellor of information. I am saying in the normal course of events a lot of work goes on before the Lord Chancellor sees the papers.
  (Sir Hayden Phillips) Indeed. There are thousands of appointments we make every year. It is essential to have a degree of delegation in order to enable us to get on with the process.

  131. If one takes the point that Mr Stinchcombe was referring to, namely QCs, the Lord Chancellor at the end sees the whole list, does he, of those who have applied for silk?
  (Sir Hayden Phillips) Yes.

  132. He sees the whole list?
  (Sir Hayden Phillips) Yes.

  133. With that list he will have the comments made by your Department which are summarised, the comments received from people at the Bar?
  (Sir Hayden Phillips) Yes.

  134. That is the position.
  (Sir Hayden Phillips) And he will see every original comment from every person who has commented, every original piece of paper. I do this with him every year and I can assure you that is exactly what he does. There is no filtering of any sort, he sees every original remark.

  135. I am not suggesting there is a conspiracy to deprive him of information, what I am suggesting is that a lot of the information is put together clearly by your Department before the Lord Chancellor has necessarily to make a decision?
  (Sir Hayden Phillips) Correct.

Mr Fabricant

  136. Can you give us some indication as to what proportion of applicants for silk are awarded silk?
  (Sir Hayden Phillips) In this year there were 506 applicants, from memory, and 78 were awarded silk. The numbers have moved over the last five years between about 66/67 and 78, that sort of proportion out of a similar number applying.

  137. Just to follow this one line of questioning that Paul Stinchcombe was asking you regarding the question of income. You said yourself that income is not the sole determinant and, in fact, I rather got the impression it was not the main determinant.
  (Sir Hayden Phillips) That is right.

  138. I think you accepted that if, and it is an if, the question of income is perceived as a bar to people applying for silk then that would be wrong for all the reasons Paul Stinchcombe listed. I just wonder, given that you have said that interviews are becoming more important, plus all the other procedures, whether it might be worth considering—let me make it stronger—that in fact the very question as to income should be deleted from the questionnaire that is sent out to an applicant for silk? Would that not be the most positive way that the Lord Chancellor's Department could demonstrate that income is not a determinant as to whether or not silk is awarded?
  (Sir Hayden Phillips) I think what we have found, as I said earlier, is that it is quite a useful additional bit of information to tell you about where that person's practice is positioned in relation to their jurisdiction. I do not think at the moment the Lord Chancellor would want to remove that question but I will make sure that the arguments are put to him that the Committee have raised with me.


  139. Can you just tell me, Sir Hayden, do you have a notional number of silks there should be year on year? Does somebody say "there should be between X and Y"?
  (Sir Hayden Phillips) No. Actually, it is interesting, I asked myself that question this year having looked at the historical pattern. We actually produced a number more this year, relatively it was quite a large increase, 78 from 69, compared to previous years. There are two sorts of points here. First of all, and I would have thought this was the way the Bar and the solicitors' profession would want to see it, that you should pass a hurdle to qualify if you are going to have this mark of distinction at all. Having passed that hurdle, you should be selecting each year those who are the best qualified within that competition. Those two pressures will always keep the numbers down. If you gave it much more generously people would then argue that you are devaluing the currency and it no longer represents what it was before and so on. There has to be a measure of sensible control but I cannot say that we have laid out precisely guidelines that would govern that, we have rather been governed by the quality of the applicants that come forward each year.

9  Note by witness: An allegation of misconduct made during the consultation process will be disclosed to the applicant, with the consent of the author, to enable the applicant to comment on the allegation. If consent is not given the Lord Chancellor will disregard the allegation. Back

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