Examination of Witnesses (Questions 40
- 60)
TUESDAY 11 NOVEMBER 2003
SIR COLIN
CAMPBELL
Q40 Keith Vaz: I know that Mr Cunningham
is going to ask you about how they are selected but I have just
one final question about the types of people that you put on your
Commission. Lay people would not regard these people as being
lay people; they are all directors of Marks & Spencer and
British Telecom, university professors and the like. Where is
Josephine Public represented on your Commission?
Sir Colin Campbell: They are lay
people in the sense that they are not practising lawyers or judges.
They must be people with the necessary experience and ability
to do the difficult job. To ask where are the other lay people,
they should fit in at the appropriate levels down the system through
the regions and the districts.
Q41 Mr Cunningham: How do you think
the Commission should be selected?
Sir Colin Campbell: Following
Nolan principles. So, you should have probably the Chairman appointed
by a group which should include somebody like the Permanent Secretary,
somebody from the Civil Service Commission, somebody who understands
the judicial system, and then the Chairman should be involved
with somebody from the Civil Service Commission and some lay people
in selecting the commissioners.
Q42 Mr Cunningham: Do you think there
should be some competition?
Sir Colin Campbell: Yes, advertisement
and competition.
Q43 Mr Cunningham: Do you think the
legal side will talk about the legal people on there? Do you think
the Bar Council and people like that should be involved in that?
Sir Colin Campbell: On the legal
and judicial, what we argue is that some of the positions should
be ex officio and this is to guarantee that even with the
Commission which we think is necessary, we hope it will not go
mad or become perverse. We are suspicious about anybody being
representative because if you turn up at my committee and say,
"I speak for the Bar" or "I speak for the Law Society",
that rather distorts the discussion. We would hope that, apart
from the ex officio members, everybody is interviewed in
a competition and appointed on merit.
Q44 Mr Cunningham: Would the ex
officio members be in addition to or be part of?
Sir Colin Campbell: Part of.
Q45 Chairman: In the Scottish situation,
if I remember rightly, the Dean of the Faculty was elected by
the advocates to be a member of the Commission, so you arrived
at the same point by a different route.
Sir Colin Campbell: Yes, that
is right.
Q46 Chairman: You do not have a problem
with that?
Sir Colin Campbell: As long as
the person can never say, "I am speaking for the Bar, you
have to listen to me now." It has to be an argument that
anybody in that room including lay people of considerable substance
can knock down and say, "No, you do not know better, I know
just as well as you."
Q47 Mr Dawson: Sir Colin, we have
heard you call for a proper HR system and acknowledge that this
organisation is going to have a considerable workload. Are there
any other functions that it should have apart from appointment?
Sir Colin Campbell: We say it
should appoint up to the High Court and that actually means having
a series of boards to design systems and to delegate down to the
appropriate mix of legal and lay to get the systems going. That
will be a fair amount of reform; there is an awful lot of work
involved there. Then we say it must be recommending in High Court
and above, but we also believe that this Commission has very carefully,
while obeying all existing laws and human rights legislation,
to pursue reform in the name of increasing the diversity in the
legal profession and making the changes to the judiciary that
I have mentioned, which would have to be calibrated with the existing
system, but the Commission will invent other reforms as it goes.
Q48 Mr Dawson: Will it have a role
in relation to functions such as discipline, say, or training
of people?
Sir Colin Campbell: What we say
in the report, which is probably too elliptical, is that when
it comes to questions of appointment, appraisal, promotion and
discipline, they must help to design the systems but, if you care
for the independence of the judiciary, it will be the senior judiciary
that manage these systems.
Q49 Mr Dawson: Just help me out a
little more on that one, please.
Sir Colin Campbell: For example,
let us say that we were going to see judges appointed to junior
positions at the age of 35 and then maybe to a senior position
at 45 and then maybe to the High Court at 50. You would have to
have an appraisal system in place to decide if this judge or that
judge was actually good enough to go up to the next level. So,
I think that the Judicial Appointments Commission would help to
design such an appraisal, but I think the people carrying out
the appraisal of me, as a junior judge, would be senior judges
because they are the ones with the true expertise able to do it.
Q50 Mr Dawson: So, that would be
all the disciplinary functions that would fall within a remit
of senior judge?
Sir Colin Campbell: I think the
JAC would design or help to design the systems but the senior
judiciary would implement them and this in the name of safeguarding
the independence of the judges.
Q51 Mr Soley: Can I return to the
consultation process upon which you touched with Keith Vaz. I
notice that you are opposed to the automatic consultation and
the Scottish system no longer uses that. What I am struggling
a little with is that you seem to be in favour of the nominator
system and you recognise that there is a problem in that the people
who are being consulted might give I think what you call irrelevant
considerations, excess judgment. I suppose what I want to know
from you is, what is your feeling about the role of consultation
now and also the secrecy or otherwise of that consultation process?
Sir Colin Campbell: On the automatic
consultation, it is denigrated as being secret soundings. That
is a sort of sound bite for the press. It is confidential consultation
but it is a confidential consultation that is all over the place.
You get 400 names. In recent years, they have asked people applying
for Silk to name their own referees but these are largely ignored,
so I do not know why one bothers doing that. There seems to be
a curious culture of artefacts here that if I name six people
as my referees, they should be discounted because they are my
friends. Whereas, in many other walks of life, if I name six people
as referees, they will look to see whether these are serious people
or not and, if they are, they would take them very seriously.
In a system that we would design or that I would imagine the Commission
would design, you would see some sort of objective process that
everybody had to go through. There would be application forms,
there would be nominated referees whose opinions would be taken
as seriously as their standing suggested. For example, if you
applied and named Lord Bingham and Lord Woolf, I would study every
line with enormous care because I would not possibly regard them
as your "friends", I would regard them as very distinguished
referees. Then there would be an interviewing panel which would
be objectively controlled in how it proceeded and probably one
or two external assessors to make sure that the quality control
and the behaviour of the panel was remaining one of integrity
and was not being distorted. These things operate in many walks
of life, so it is quite easy to pick a model, examine it, change
it a little and adopt it.
Q52 Mr Soley: So, really what you
are saying is that the old system of consultation goes totally
and you just rely on a conventional application with nominations
on it and you will make your judgment on the references given
in that in the normal way?
Sir Colin Campbell: On the references,
on any interviews, on the criteria and maybe assessments in some
cases. At the moment, it is promotion by gossip.
Q53 Mr Soley: I think you looked
at some of the issues that come out of tribunal cases where people
have felt they were unfairly discriminated against. Was there
a lot of evidence that the—I do not know quite what you
call it—unofficial nomination system actually causes problems
in that area if people are getting jobs or not getting jobs on
the basis of gossip, as you say?
Sir Colin Campbell: I will have
to ask one of my colleagues to help me on that because I am not
so strong on that. I am told that there is no particular evidence
of that.
Q54 Mr Soley: So, really, to summarise
it, you are basically saying to put an end to all of that process
of consultation, it has been round the floor, secret or otherwise,
and just straightforward put your own references in and then the
process follows along the normal interview lines.
Sir Colin Campbell: Yes.
Q55 Chairman: Do you have a view
about confirmation hearings by Parliament?
Sir Colin Campbell: I would be
very much against that.
Q56 Chairman: Would you like to say
why?
Sir Colin Campbell: Nothing but
mischief would come of that.
Q57 Chairman: Even though such proceedings
are used, for example, for membership of the Monetary Policy Committee
for the Bank of England?
Sir Colin Campbell: I think you
would be wrongly advised to go down that road. I think it would
be dysfunctional and counterproductive. I think that if you go
for a Judicial Appointments Commission with a lay majority and
hugely professional HR staff with judicial involvement and you
have the recommendations above High Court so that there is actually
a three key system involved here, then what you do not want to
do is make a charade of appointing judges. You would run out of
judges very, very quickly.
Q58 Peter Bottomley: Just for the
record, you have chosen not to comment on the detailed proposals
on the Court of Final Appeal.
Sir Colin Campbell: That is right.
Q59 Peter Bottomley: Is it implicit
in what you said about the Commission that the other members would
need to be appointed after the Chairman has been identified and
put in place?
Sir Colin Campbell: I think so.
Q60 Peter Bottomley: Finally, if
you have any spare time but not this morning, can you think about
writing a note to the Prime Minister on how to choose junior ministers
and cabinet ministers with three keys!
Sir Colin Campbell: I think that
probably I would claim a full diary!
Chairman: Happily, it is beyond the terms
of reference of this Committee as well! Thank you very much, Sir
Colin.
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