Examination of Witnesses (Questions 80
- 99)
TUESDAY 16 OCTOBER 2001
THE RT
HON LORD
IRVINE OF
LAIRG QC AND
SIR HAYDEN
PHILLIPS KCB
80. Has he done that?
(Lord Irvine of Lairg) Yes, he has sat in. There was
a recent heads of division meeting which he attended.
81. When can we expect his report?
(Sir Hayden Phillips) The end of October next year.
The same time as the Lord Chancellor's report.
(Lord Irvine of Lairg) Yes. His first report will
be the end of October next year. I, of course, will be making
a report to Parliament at the end of October this year but Sir
Colin Campbell's first year will be up at the end of October next
year.
David Winnick
82. When we see the annual report, Lord Chancellor,
of your department, will there be any marked progress in the appointment
of women to the most senior judicial positions? When I last asked
you questions, as you know, there was some very limited progress,
will there be more?
(Lord Irvine of Lairg) Mrs Justice Arden and Mrs Justice
Hale have comparatively recently been appointed to the Court of
Appeal. I have probably appointed more women to the high court
bench than has ever happened before, but until the proportion
of women who have been in the profession for, let us say, about
25 years becomes the same as men, we will not see the very marked
improvement that I would like to see. The fact that can never
be emphasised sufficiently often is that we do not have a career
judiciary in this country, right or wrong, and this is something
we could discuss another time obviously. We appoint as our judges
highly experienced lawyers from both professions—solicitors
and the bar—who generally have been at the law for 20 or
25 years before they are appointed, and we are unlike the Continent
in that respect. That is why there is a false comparison between
the almost equal numbers of men and women entering the profession
today and the lack of equality in men and women at senior levels
in the judiciary because that imbalance represents the proportions
of men and women in the profession 25 years ago as distinct from
today. But I do not want to say to you that I am in the least
complacent about this. I will be judged by my record in the promotion
of women to judicial appointments.
83. Perhaps I can say, Lord Chancellor, that
you have done more than other previous occupants of your office
but in itself the progress has been very limited.
(Lord Irvine of Lairg) It has just occurred to me
that you might be damning me with faint praise by saying that,
but even faint praise is worth something.
84. If the explanation you have given is the
one previously given, that we must wait for those who have been
in the profession some quarter of a century, would I not be right
in working on the assumption that even getting, say, 10, 20 per
cent of women holding the most senior judicial positions is going
to take some time?
(Lord Irvine of Lairg) Yes, that is true. I do not
know but I would imagine that everybody round this table approves
of a judiciary appointed on merit, provided merit is assessed
fairly, and we have our Judicial Appointments Commissioner with
his ten deputies to tell us whether we are being in any way unfair.
If I was a member of the public coming out of court, complaining
about a judge, man or woman, I would not be best pleased if I
was told by somebody in the know, "Well, he is a rotten judge
but it was the man's turn that day" or "Yes, she is
a rotten judge but it was the woman's turn that day". Nobody
is recommending, I do not think, positive discrimination in place
of a merit system.
Chairman
85. No, but there have been times in the past,
Lord Chancellor, when it has looked like a rather cosy boys' club
at the top, has it not? Although successive Lord Chancellors have
assured this Committee over the years they preside over an almost
perfect system, those of us who are not lawyers have noticed that
it is broadly the same type of upper class male, educated at the
same handful of schools and universities who emerges at the top,
and we are a bit nervous that perhaps some of these commissioners
will turn out to be in the same mould.
(Lord Irvine of Lairg) You will have to look at who
they are and where they come from, but you have a Lord Chancellor
who did not come from the schools you are describing.
86. That is true.
(Sir Hayden Phillips) Perhaps it would help if I could
just say, if you look at the appointment of recorders over the
last four years, that is the part-time judicial step, many of
whom would be in a younger age range, it has gone from just 7
per cent being women in 1998 to just over 12 per cent now. So
what you are seeing in that younger generation is the sort of
progression that the Lord Chancellor is talking about.
David Winnick
87. At the most senior judicial appointments
it is about 1 to 3 per cent at most, a derisory proportion.
(Lord Irvine of Lairg) Yes, but the significance in
my Permanent Secretary referring to the recorders is that this
is a signal for the future. Recorder is the first rung on the
judicial ladder. If you do not get your foot on that rung, realistically
you are not going to become a judge. So it is quite a significant
figure for what it promises.
88. On another aspect, if I may, are your judicial
appointments asked if they are freemasons?
(Lord Irvine of Lairg) Yes, all written applicants
for judicial appointments have now to state whether they are freemasons
or not. I seem to remember the very first time I had the pleasure
of appearing in front of this Committee, the present Chairman
was in the chair, and I was tasked with freemasonry in the judiciary,
and I went out and got information from the judges on a voluntary
basis about the position, and subsequently we earned a certain
amount of praise from your Committee for the voluntary co-operation
that there had been. I hesitate to say that judges are obedient,
they are not meant to be, but they were very, very co-operative.
If you take the profession, we got an enormous compliance, and
nearly 90 per cent of the professional judiciary were shown to
be non-masons, and of the lay magistracy 80.4 per cent were shown
to be non-masons, and the level of compliance with the request
to give the information was huge. I think it was only a tiny percentage
in relation to the whole, like 4 per cent or something, which
declined on conscience grounds to respond. Now in relation to
new applicants, which I think is the force of the question, we
do not leave it to voluntariness, they have to say in their application.
89. It is conditional on appointment, is it?
In other words, if they refuse to disclose they cannot be appointed?
Is that the position, Lord Chancellor?
(Lord Irvine of Lairg) I think I had better write
to you about this.[3]
I think that the application form requires them to state whether
they are masons or not. The question is, if they decline to state
might they still be appointed? I do not want to commit myself
to an answer to that without checking.
90. That is a fair point. If you could write
to us, because it is rather relevant.
(Lord Irvine of Lairg) The important element is that
the overwhelming majority are going to state the position, as
evidenced by their conduct when they did not have to. Do you follow
me? You have asked me a sharp question, the applications certainly
invite them to, and as I understand the question it is, if they
decline to answer that question, may they still be appointed.
I think I know what the answer is but I do not want to commit
myself to an answer.
91. I do not want you to either because it is
too important.
(Lord Irvine of Lairg) Precisely.
92. The response of the judiciary has indeed
been very good, no one can deny that the overwhelming majority
of judges have indeed replied, but when it comes to the magistrates
the figure I have is of the lay magistrates some 2 per cent, or
just over, did not disclose but, moreover, over 12 per cent did
not reply at all.
(Lord Irvine of Lairg) Yes.
93. It is a little worrying, is it not?
(Lord Irvine of Lairg) If you could achieve that level
of compliance in certain other walks of life, it would be a colossal
achievement. The way I would prefer to put it is that it is not
quite as good as the professional judiciary.
94. Will they get a reminder that it would not
do any harm?
(Lord Irvine of Lairg) I am not going to harry existing
judges on this. I do think fair's fair and this is a very, very
substantial level of compliance, largely, if I may say so, promoted
by a question and answer session on this subject within this Committee
a few years ago.
Chairman: I remember it well. Complaints against
solicitors.
Mr Prosser
95. Lord Chancellor, in the course of MPs' surgeries
we get an enormous number of complaints about solicitors, either
as a main point of complaint or added to their other concerns.
When you gave evidence to the Committee on the last occasion you
gave some faint praise—I will not say you damned them—to
the Office for the Supervision of Solicitors and you expressed
some disappointment that the complaints were still running at
one complaint per five lawyers per year. I wondered whether you
have seen any improvement since we last met?
(Lord Irvine of Lairg) The answer is I have seen improvement.
The last thing I want to do is to discourage people who are doing
better from continuing to do better, but it is a very narrow line
I have to walk because I do not want to encourage any kind of
complacency because nobody has been more concerned than I have
been at the volume and the nature of complaints against solicitors,
and I know every MP would endorse that. Let me reply with facts,
and in a way you can judge for yourselves, if you like. The first
thing is that we set very, very exacting targets, and it is very
easy when very exacting targets are not achieved to say that is
a failure. Of course if you had set the targets a bit lower, it
would look better, but I was determined to set very exacting targets.
In December 2000 two key quality targets were set for the Office
of Supervision of Solicitors. The first target for January to
June this year was that the Ombudsman had to be satisfied in an
average of 70 per cent of cases. They failed that, the average
satisfaction rating has been for that period 55 per cent. Then
if you take another target, July to December 2001, here the Legal
Services Ombudsman had to be satisfied in an average of 75 per
cent of cases—so you can see the targets are going up. Again
they failed, but they were satisfied in 64 per cent of all cases.
But the most encouraging statistic, which I hope will be sustained
and I will know soon enough, is that in September the Ombudsman
was satisfied in 79 per cent of new cases, which is actually 4
per cent above the target. I get a pretty clear signal from that,
although I cannot prove it to you. The backlog has not been dealt
with nearly as well as it should but current cases are being dealt
with well. I think that is a reasonable interpretation. Over the
year, however, if you look at the whole year, they have been satisfied
in 57 per cent of all cases, and that is 18 per cent below the
new target, but I am told that in relation to the post-September
1999 cases, that is cases which arose out of complaints dating
from September 1999, it is 75 per cent, so that is the current
quality target. So I think the truth is that things are getting
better, much better, currently but there is a backlog to be addressed.
96. Do you have an intention to up those targets
as they are attained?
(Lord Irvine of Lairg) I do not want to preclude upping
the targets. I do regard them as pretty exacting targets because
the standards that are applied are also exacting. I may up the
targets, yes, in relation to an issue as important as this, but
where 75 per cent is a very creditable examination mark, it is
less so in an area like this.
(Sir Hayden Phillips) There are also targets the Lord
Chancellor has set for turning the stuff round fast enough and
also for not allowing caseloads to rise. I think I am right in
saying in relation to turnround times on the whole they are doing
rather well. In relation to holding down the weight of work, they
are not doing so well.
(Lord Irvine of Lairg) It is too late but I could
list a whole range of targets where they are doing quite well
because there are all sorts of targets, but the two I have selected
for you are the most informative ones.
97. There has been some talk that the Law Society
is wanting to take away the issue of sloppiness and inefficiency
from the complaints procedure as opposed to misconduct or negligence.
Have you had any representations from the Law Society on this?
Do you have a view on this?
(Lord Irvine of Lairg) I have heard about it but I
believe service and conduct complaints are very legitimate complaints
and the system has to apply itself to that.
98. There is a very thin line really between
negligence and sloppiness?
(Lord Irvine of Lairg) Absolutely.
99. So perhaps we can take it you would be firm
on that?
(Lord Irvine of Lairg) I am with you on this.
3 See p. 19. Back
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