Examination of Witnesses (Questions 120
- 139)
TUESDAY 23 JANUARY 2001
THE RT
HON LORD
IRVINE OF
LAIRG, QC, AND
SIR HAYDEN
PHILLIPS, KCB
120. What would you say to the argument that
this is really a sort of sop? Not necessarily my view, I want
to make clear, I believe it is a serious new departure, I welcome
it. What do you say to those who say it is a sort of sop to the
alternative which at one stage the Labour Party was committed
to and that was a fully independent Judicial Appointments Commission?
(Lord Irvine of Lairg) First of all, it is not a sop.
It is an expression of confidence in the fairness of the existing
system which I think is of a quite remarkable character if you
are willing to open up as complex and as detailed an appointments
procedure as this to the most thorough scrutiny. I think, Chairman,
you implied that you accepted that because it is a very serious
change. Of course it is not the same as a Judicial Appointments
Commission, that is true. A Judicial Appointments Commission could
be appointed, it could make the appointment or it could be advisory
as to who should be appointed, but the point is that we have in
this country a system where we wish to appoint people on the basis
of merit only, the merit principle underpins everything that is
done, and the new Commissioner for Judicial Appointments will
be well able to say whether there is any principle other than
merit which applies to these appointments.
121. Is there a possibility—it may not
be within their remit—that the Commission recommends at
some stage there should be a different form of appointment?
(Lord Irvine of Lairg) I have always made it absolutely
plain that I have not a closed mind on a Judicial Appointments
Commission.
122. You have not ruled it out?
(Lord Irvine of Lairg) Certainly I have not ruled
it out, nor have I ruled out going out to consultation on it at
some time. It is, of course, highly controversial because there
are some who think—and I am not putting myself in any camp—the
merit principle would be diminished by the compromises that would
be implicit in an Appointments Commission and the seeking of something
called representativeness as distinct from merit. Now I am not
expressing any views on this. I made it absolutely plain, and
I made it plain I believe to this Committee before and to other
Committees of the House of Commons, that I have not in any sense
ruled it out. I think that public understanding will be much greater,
the public will be much more fully informed about the quality
of the existing system after the first Commissioner has reported
for the first time.
123. I am sure we all look forward to seeing
how that actually works in practice. Lord Chancellor, there is
a proposal, is there not, for an assessment centre whereby those
going on the first step of the judicial ladder will be invited
to come to a place to be interviewed and various tests will be
made, is that correct?
(Lord Irvine of Lairg) That is right. The Permanent
Secretary probably knows more about the detail of this than I
do but there is going to be a pilot later this year, I think at
Deputy District Judge level, to test out the feasibility of an
assessment centre, assessing judicial aptitude for judicial appointment.[3]
124. Psychological tests as well?
(Sir Hayden Phillips) The process is now being designed
and we will look at a variety of assessment centres which have
worked in the past and see which ones we think best for the sort
of job we are seeking.
125. The sort of test, interview by whom and
what?
(Sir Hayden Phillips) There will be a mixture of interview.
There will be some sorts, I am sure, of psychological or temperamental
assessment. There will probably be some actual work that has to
be done in a sort of mock up situation and so on.
126. While this is a pilot, it is intended,
I take it, Lord Chancellor, it should become a permanent feature
of any first step judicial appointment?
(Lord Irvine of Lairg) Not necessarily, it depends
upon the outcome.
127. What about those being promoted, one already
on the judicial ladder who will be promoted to a more senior position?
Is it being suggested that perhaps in the future they should attend
a one day assessment centre?
(Lord Irvine of Lairg) There is no such suggestion.
128. No. You rule that out?
(Lord Irvine of Lairg) No, but there is no such suggestion.
129. Before one of my colleagues asks about
the appointment of silks, if we look at the table which has been
circulated to us on judges and lay magistrates in post. I am looking
at 1 April 1999 and 1 April 2000 if you have it.
(Lord Irvine of Lairg) You are looking at?
130. The table for judicial appointments, the
annual report.
(Lord Irvine of Lairg) Thank you.
131. I am comparing the figures from April 1999
to April last year. When it comes to Lords of Appeal in Ordinary
we remain, do we not, 12 men, no women whites, blacks, Asians
or others.
(Lord Irvine of Lairg) Yes.
132. On Head of Division, including the Lord
Chancellor, three men, one female, so there has been some progress
here.
(Lord Irvine of Lairg) Yes, 25 per cent.
133. Column four, no blacks, Asians or others.
Lord Justices of Appeal, that has remained the same, has it not?
(Lord Irvine of Lairg) Well, no, not quite. I —
134. The figure I have April 2000, Lord Justices
of Appeal, 34 men, one female.
(Lord Irvine of Lairg) Yes, well that is not up to
date. Brenda Hale in October 1999 and Mary Arden in October 2000,
so they are two lady Justices of Appeal appointed. If you include
Elizabeth Butler-Sloss, the President of the Family Division,
that is three women at appellate level.
135. It does not change the position on colour,
I assume. High court judges, the next figure I have, 93 men, nine
females, no blacks, Asians or others, correct?
(Lord Irvine of Lairg) That is true, but can I just
say this. Things are changing now. In 1999 to 2000 seven appointments
were made to the High Court bench, three out of seven were women.
Heather Hallett in April 1999, Gill Black in October 1999, Ann
Raffetty in February 2000. Now I am not exuding complacency at
that but these are good outcomes based on merit and you may also
have noticed that recently Mrs Justice Janet Smith has been entrusted
with a very great public inquiry, the Shipman Inquiry. If I may
say so, the comparison that is made between the proportions of
women in the profession today and the proportion of women at senior
judicial level is a false comparison. The reason is that you do
not become a judge at that level until you have been a lawyer
of over 20 years' experience and perhaps well over 20 years' experience.
If you take, for example, that as being the relevant pool then
only 11.6 per cent of barristers and 9.8 per cent of solicitors
of more than 20 years' standing are women and that is the relevant
comparison. I have got no doubt that over the fullness of time
on merit, and merit only, women will punch their weight equally
with men. That is why I went out of my way to mention these names
to you which are really significant progress.
136. You used the phrase "fullness of time",
it is a question of how long it will be before there is any kind
of equality of gender on the bench?
(Lord Irvine of Lairg) Unless the proposition is that
we have an entirely different form of judiciary in our country,
a judiciary which is drawn from highly experienced ranks of professional
lawyers who have been in substantial practice for 20 to 25 years,
unless you are going to change that, until the pools become equal
as between the sexes of lawyers of that seniority you are going
to have a disparity.
137. That applies to ethnic minorities?
(Lord Irvine of Lairg) Yes, it does.
138. We need not be too optimistic about substantial
progress in the near future?
(Lord Irvine of Lairg) I regard the progress that
I mentioned to you, three out of seven of the appointments to
the High Court bench in the last complete year have been women,
and I hope that the Committee will regard that as an encouraging
pointer ahead.
139. One also has to look at the overall position.
Can I ask you as a layman the position over solicitors? Do I take
it that solicitors are excluded necessarily from any of the most
senior appointments?
(Lord Irvine of Lairg) Certainly not. I recommended
the first solicitor to the High Court bench, Laurence Collins.
3 Note by witness: Some preliminary work has
begun on plans for a pilot assessment centre, and will continue
this year: the timing of the pilot has yet to be settled. Back
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