Examination of witnesses (Questions 120
- 139)
TUESDAY 25 JULY 2000
SIR HAYDEN
PHILLIPS, KCB, and MISS
JENNY ROWE
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.
Chairman
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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