Examination of Witnesses (Questions 1
- 19)
TUESDAY 11 NOVEMBER 2003
SIR COLIN
CAMPBELL
Chairman: Good morning, Sir Colin, and
welcome to this Committee. We are very appreciative of your time
and the experience of the Judicial Appointments Commission which
you can bring to us. There are two things that I need to do before
we start. The first is to announce that, if the Committee is still
sitting at 11.00, then I will suspend the proceedings for two
minutes' silence in accordance with the Speaker's wishes. Secondly,
a number of members may have interests to declare.
Ross Cranston: I am a barrister and a
recorder and I have known Sir Colin since 1974, I think.
Mrs Cryer: I am a JP but just a supplemental
one.
Keith Vaz: I am a non-practising barrister,
my wife holds a judicial appointment and I have never met Sir
Colin.
Q1 Chairman: Sir Colin, you submitted
your response to the Government's consultation paper and we had
sight of that on Thursday, so we have not had a lot of time to
absorb all its contents. Is there anything that you want to say
by way of opening statement to highlight anything in that response?
Sir Colin Campbell: Chairman and
ladies and gentlemen, I am very grateful for the opportunity to
come before you to talk about our two annual reports and our submission
on the Judicial Appointments Commission. I was appointed the First
Commissioner for Judicial Appointments in March 2001 and then,
by open competition, we appointed a further seven commissioners
and it is, in my opinion, a very impressive group of people who
have done very good work in the last year and a half. These are
four men and four women drawn from different sectors, none of
them is a barrister, lawyer or a judge. For the first time in
history, we have had the unprecedented access to all the departmental
papers, all the committee papers and all the interview papers
and we have also had confidential discussions with those responsible
for administering the system and of course we have also investigated
complaints. We have really three functions: to take complaints,
to carry out audits and we inherited an agenda for reform that
had been articulated by others. In our first two annual reports,
as you have seen—and I understand that you have only had
a short time to look at them—we identified serious and chronic
problems in the old system such that we recommended that it should
be abandoned and that there should be a Judicial Appointments
Commission. This would bring about huge reforms in public confidence,
transparency, objectivity and fairness and, in the document which
you will only have seen in the last week or so, we have tried
to design a Judicial Appointments Commission that would marry
transparency, fairness, accountability and parliamentary democracy
with the necessary judicial and legal expertise to ensure that
we continue to make very high quality appointments to the Bench.
Q2 Chairman: Were you one of those
consulted by the Government when they announced their judicial
appointment proposals or before that announcement was made?
Sir Colin Campbell: We have, I
hope, rigorously kept an arm's length distance from the Government
when we have been investigating complaints. We have, in rendering
our reports on different competitions and in our annual reports,
sought to influence the Government because there is no point publishing
a report to sit on a desk, we are publishing a report to actually
influence. So, yes, we said that we were in favour of a Judicial
Appointments Commission before it was announced by the Government
and we did try to articulate and help some of the points at which
the consultation should take place because it seemed to us that
it would have been utterly perverse for this group of people to
have a unique insight and to examine something for 18 months and
then not to disclose that to those who are interested in designing
reforms.
Q3 Chairman: So, even if there were
not a constitutional principle or argument which led people to
argue for a Judicial Appointments Commission, you would still
have been arguing for it and indeed were still arguing for it
on the grounds that the system could be made to work better with
a Judicial Appointments Commission.
Sir Colin Campbell: Yes, we were
arguing for it. We felt that the old system, if it had ever been
adequate, for a much smaller profession with a different culture,
different expectations about values, transparency and so on .
. . There was more barnacle than boat by the time we got to look
at it!
Q4 Mrs Cryer: I wonder if you would
like to comment on a few issues relating to the under-representation
of women and ethnic minorities at present in judicial appointments.
Sir Thomas Legg, who was apparently the former permanent secretary
for the Lord Chancellor, suggested that you could look at it from
two points of view: maximal merit, which would leave no room at
the point of decision for supplementary policies about the social
and professional makeup of the judiciary because you were just
looking at how good this person was and this person may be only
one person and you can start to look beyond that one; and the
other one is minimal merit, which would be to select amongst them
in accordance with any supplementary policies you had. For example,
about the need to have more women or ethnic minority judges. I
do not think that is to suggest that you are toning down the quality
of judges but at least you were looking a little bit wider than
purely experience and purely qualifications. So, do you favour
a maximal merit or minimal merit or somewhere between those two
and is there a need for any supplemental policies to encourage
applications by and the appointment of under-represented groups
such as women and ethnic minorities?
Sir Colin Campbell: I will try
to deal with the first part quite quickly because I think you
are more interested in the second part. On the first part, we
are of the view that there is seriously insufficient diversity
in the senior positions in the legal profession and in the judiciary
in particular. Different people, including women advocates have
different arguments and have different analyses as to what to
do. Some say to wait for "trickle up", which was the
position the previous Lord Chancellor maintained; others have
said there should be some intervention; and then there are arguments
about possible discrimination or otherwise. We have said in our
two reports that we think that there is systemic bias against
women and ethnic minorities. The way it works is actually different.
The Bar is hugely family unfriendly to start with. 50% of women
on call, 20% of women when they might be ready for Silk, that
sort of statistic. In the solicitors' branch of the profession,
the dynamics are different, but again they do not assist women.
We have said that there should be a radical departure and there
should be a new career path opened out for women, and men, to
think of going on to a junior judicial appointment say eight to
ten years after call. So, our position on diversity is a strong
one, although we think that the Judicial Appointments Commission
will have a very hard job and it will take them seven or 10 years
to redress the balance. On maximal and minimal, I am not hugely
excited about what is quite a clever distinction but rather an
academic distinction, I would say. If you are looking at what
you want in a judge, we set it out in paragraph 5.11. I do not
want to read it all out but it is pretty much what you will find
in England, it is pretty much what you will find in Scotland and
it is pretty much what you will find in Canada. Everyone can agree
that there must be sound judgment, decisiveness, intellectual
analytic ability, legal knowledge and the like. The point is,
how do you operationalise that in a fair way? What we say is that
the Judicial Appointments Commission, if it has the expertise
and the human resource expertise that we want it to have, will
try to measure these attributes in a fair, objective and transparent
way. Then we say that we should not at this stage, in 2003, say
that we are going to tell the Judicial Appointments Commission
that it must have one candidate or two candidates in 2005 because
we do not know what the issues approaching them will be. Why do
we not let them as the expert people decide and, having looked
at all of you, I, the Commission, think that this chap here is
absolutely outstanding and I say so. At another year, looking
at all of you, I might say, "The two of you are hugely good
and I am going to put the two of you up." At that point,
I find maximal and minimal probably an unnecessary distraction.
Q5 Mrs Cryer: As time goes on once
these appointments have started to be made, how could the Commission
judge whether it was making an appropriate level of appointments
from female and ethnic minority candidates and has the previous
weighting of judicial appointments towards members of the Bar
had an impact on the type of appointees that we have been seeing?
Sir Colin Campbell: I think the
Commission should be given a diversity mission; it should be charged
with pursuing and encouraging diversity without breaching the
merit principle. The merit principle need not be broken. I think
a lot of people in this House paid attention to Beverley McLachlin,
the Chief Justice of Canada, when she visited. She mentioned how
their Commission had taken about 10 or 15 years to change the
percentages of women involvement to levels that are a huge embarrassment
to us. So, the Commission would be charged with the job and it
would have to monitor and publish its annual reports. We say the
annual report should go to Parliament to make sure that there
is final democratic accountability on these issues.
Q6 Chairman: Could I just pick up
on your proposal that one of the ways of dealing with this is
to appoint judges quite a lot younger, maybe eight years after
call. Do you see any dangers in this because it would change the
perception and character of the judiciary significantly and you
would have judges who did not have the same level of court room
experience as most/all senior judicial appointments have? The
degree of authority attached to the judge might be affected by
it and you would have perhaps—and I am putting the arguments
of those who might be opposed to this, not necessarily my own—young
people seeking to establish a career rather than those whose ability
and standing was no longer in doubt being attracted to the Bench
because they already have that authority.
Sir Colin Campbell: My own view
is that this is a reasonably radical proposal which commends it
hugely because it is a way of saying in a novel fashion to young
men and women and people from ethnic minorities at the age of
16 or 17, "If you want to study law, come on. You can become
a solicitor or you can become a barrister, but there is another
career path which is, at the age of 32 or 34, after eight or ten
years of call, you can, in balancing your professional and family
life, think of taking a junior judicial position." Is that
likely to change things? Yes, it will change things. Instead of
seeing an old white man every time, there might be a different
coloured face and it might be female and I do not see how that
is going to upset too many people and, arguably, it is as much
a reassurance as it is at the present. I do not see the authority
of the court being diminished at all by there being a 34 or 38
year old chairing the proceedings, given the gravity of the proceedings
that might be involved. I think that what we are arguing is that
we do not subvert the judicial system so entirely that this is
the only way of getting up the career path, it has to be calibrated
with the existing system. So that, for example, I might want to
become a judge at 32 or 34 and hope for one more promotion because
that is really my ability and another person might think, "I
am not going to take that; I am going to wait until I am 34, get
Silk and then go straight on to the High Court". We have
to be able to run different things together. I do not see much
danger—if I could briefly deal with this point—in
a 34 year old man or woman who has been dealing with significant
legal issues and significant clients going to deal with a rather
limited jurisdiction in a court. I think they have proved that
they are clever and that they are people of integrity and ability,
and 34 or 35 is not too young to make decisions.
Q7 Peter Bottomley: Would there be
any difficulty if I became a judge at say 38 and, at aged 48,
moving off and becoming a practising lawyer? There is obviously
no difficulty in becoming an academic but would there be a difficulty
in going from the Bench back into partisan legal work?
Sir Colin Campbell: I would have
thought not if it was properly insulated to avoid conflict of
interest. If, as I think you are implying, one were to go down
this path, one could envisage greater mobility between different
branches of the profession and I would welcome that.
Q8 Dr Whitehead: What role do you
see for the positive practice of headhunting candidates as opposed
to the more structured method of appointment?
Sir Colin Campbell: Let me say
something about this because I think there is a lot of suspicion
about the tap on the shoulder—that is pejorative, that is
disgraceful. Other people think that headhunting is something
that Price Waterhouse Cooper or Saatchi & Saatchi do. I think
that my Commissioners are all very experienced in their different
sectors. Millie Banerjee in BT, Jean Tomlin in Marks & Spencer.
With a number of jobs, you advertise, you take the best that you
have, it is very good and you make the appointment. When you are
getting to very senior esoteric jobs, that does not work as well
or it does not work by itself. So, for example, if you are trying
to get the best consultant in obs and gynae to do something, you
are unlikely to get that by a straightforward advertisement in
The Mail. If you are trying to get an outstanding Fellow of the
Royal Society in Particle Physics to move from one university
to another, you will not get that by advertising. So, it must
remain the case—and it does in private sector and public
sector—that you do advertise but you retain the right also
to headhunt and that can mean to try gently and over a period
of time to persuade somebody who is very distinguished and does
not want to risk the problem of a career rejection to "please
come". The vital things in this are that you can use these
methods of persuasion, nevertheless such people also must submit
an application form and must also be interviewed. That is the
difference between justifiable headhunting and the tap on the
shoulder.
Q9 Dr Whitehead: One of the problems
with headhunting is the strong implication that the person headhunted
will be appointed and you have just—
Sir Colin Campbell: Yes and therefore
you have to have a very tight process. Let us say that I am trying
to headhunt you. I have checked you out with seven or eight distinguished
referees; I have checked you out with my own colleagues; we have
looked at your curriculum vitae; we now know that you are one
of the best two or three in the country; so, I ask to meet you
and I try to persuade you. There are a number of pressures on
me because I am not allowed to mislead you or accidentally wreck
your life, but the most that I can eventually say is, "I
am going to recommend you but you will have to go to the full
panel with objective controls and you will have to satisfy them."
In my walk of life, I do do that. So far, I have never got it
wrong because the pressures are to be very conservative and never
to abuse. You would never suggest that somebody does this unless
you were dealing with somebody of utterly stellar proportions.
Q10 Dr Whitehead: Do you not think
that all the other merits of the system that you have suggested
with the process of headhunting, as it were, could shape appointments
away, for example, from well-qualified ethnic minority or female
candidates?
Sir Colin Campbell: I would not
want the headhunting process to be the tail that wags the dog.
It is something that one allows but would not let dominate. I
cannot immediately see why it should be prejudicial to ethnic
minorities at all. In fact, if the JAC were to get a mission to
promote diversity because of the additional attributes people
other than the traditional middle-class white male bring, I would
not have thought that could happen.
Q11 Dr Whitehead: Under those circumstances,
should there perhaps be rules for headhunting?
Sir Colin Campbell: There must
be rules for headhunting.
Q12 Dr Whitehead: Would they be explicit
rules?
Sir Colin Campbell: I think in
most sensible HR organisations, they are. Certainly in the organisations
in which I work in the private sector and the public sector, there
are absolutely rigid understandings of what behaviour is proper
and what is not. Can I just add one point here very briefly. I
do believe that senior members of the judiciary are concerned
that, if they move to a too public objective transparent system,
they will fail to get some of the people they really want to attract.
Personally, I would take that concern seriously.
Q13 Mr Soley: Can I just clarify
on this very important point of your rules for headhunting. There
is a danger that they blur between you saying to me, "Why
do you not apply?" and me thinking that is an invitation
to apply and you having to go through very set formal procedures
in order to initiate a headhunting process. I take it that you
are suggesting the latter and I take it that you are therefore
suggesting that the rules would have to be, as my colleague was
saying, very explicit.
Sir Colin Campbell: Yes. The area
where I can see it most working if you think of the Judicial Appointments
Commission are appointments to the High Court, which is why my
Commissioners and I have recommended that this board should be
chaired by the Chair of the Commission and have some lay members
as well as judicial members. Here, you have the absolute interplay
of the necessary judicial expertise with lay control. I am personally
relaxed as to whether the judges at this point should be in a
majority or in parity as long as they have a huge say, but I am
also concerned in terms of parliamentary accountability and democratic
accountability that the Chairman of the Commission, if he or she
should be concerned about anything that is going on under headhunting,
can take it back to the full Commission.
Q14 Ross Cranston: I wanted to move
on to the recommendations made by your Commission and, in the
submission, I see that you do not tie yourself to a recommendation
that simply one name go forward but that there be a number of
names. Now, people take different views about this and I am just
wondering if you can talk the Committee through the rationale
of your approach.
Sir Colin Campbell: Some people
say, "We want only one name because we do not trust the politicians"
of the future of course "to exercise their discretion totally
and honestly" and so they say, "Let us put up one name
and that can be rejected or accepted." That is plausible.
Another argument is, let them put up one, two or three names in
order of preference for the minister to choose and he should make
it clear why he changes the preference, if he does. That is also
plausible and it has operated in many areas of public life in
Britain over the years, just as there are some scandalous stories
of sometimes malign abuse. We do not feel that this is something
to die for. You can argue for or against a degree of political
discretion. I think that, at the end of the day, we feel that
it must be there in a parliamentary democracy. As to the number
of names, we say, "Why not leave it to the Commission? They
are the only people who, on the day, know what they are doing."
So, on one day in 2003, they have looked at 15 people, they have
decided that one is outstandingly the best and they put him or
her up. Five years later in different circumstances that we cannot
envisage, they look at 15 people and they are blessed to come
up with two people who they think are wonderful. So, they say
to the minister, "You had better decide because we just think
they are marvellous." We would say, "Let us have the
ministerial accountability and ultimately to Parliament but let
the Commission, who will know on the day better than any of us,
decide whether to put up one or more."
Q15 Ross Cranston: It will often
depend on the number of vacancies, will it not?
Sir Colin Campbell: That is correct.
Q16 Ross Cranston: The way the High
Court appointments are being advertised these days, there might
be a number of vacancies.
Sir Colin Campbell: That is a
further reason for leaving to the Commission but the minister
cannot substitute a name.
Q17 Ross Cranston: I think that you
then go on to say that, if the minister does reject someone, then
a written explanation has to be given to the Commission. There
are two issues: (a) is that going to be public; (b) is it likely
to become public even if it is not supposed to be public?
Sir Colin Campbell: The Canadian
experience is that the minister can reject, can give a reason,
and they maintain confidentiality. I doubt if we would . . . I
do not know.
Q18 Ross Cranston: Is the idea that
it is to be a reasoned statement?
Sir Colin Campbell: It would be
a reasoned statement and it is possible . . . I should take back
my facetious remark that I doubt if we would, I fear that we might
not. Personally, I want us to take every possible measure to protect
the reputations of senior people whose names are being considered.
I think that Beverley McLachlin, Chief Justice of Canada, did
tell me that she put up a name which had been turned down by the
minister and she seemed entirely relaxed about it because she
felt that his reasoning was good, which, if I recall, was that
he wanted a different geographic part of Canada to be represented.
Q19 Ross Cranston: It might be useful
to have the commission to actually accept the statement or comment
on the statement.
Sir Colin Campbell: Yes, I am
sure it would. If you were putting up the name for a senior judicial
appointment and it was turned down, then I think that would be
an important event.
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