Examination of Witnesses (Questions 61
- 79)
TUESDAY 11 NOVEMBER 2003
ROGER SMITH
AND PROFESSOR
ROBERT STEVENS
Q61 Chairman: Welcome to Mr Roger
Smith, the Director of JUSTICE, and Professor Robert Stevens,
I think a former Council Member of JUSTICE, and Senior Research
Fellow at University College London. We are very glad to have
your time and assistance. Just on a general point which we talked
about earlier, would you like to indicate in a sentence or two
whether you think the system would need changing even if there
was not a constitutional principle involved in separation of powers.
I am talking now about the appointment system; we will move on
to the court later.
Professor Stevens: Mr Chairman,
I chaired the Justice Committee in 1993 on the selection of judges
and we certainly were, I believe, bar its chairman, a distinguished
committee, and I think we were very clear that the system needed
much greater openness. We were certainly not convinced that the
existing system was evil but, in a modern democracy, it is very
difficult to justify making these decisions behind closed doors.
We recommended a commission; I think Sir Colin in a sense is a
forerunner of that; I think that the system has worked well with
him and I think a system of a Judicial Appointments Commission
would indeed work very well.
Mr Smith: I think that it needs
to be changed for a number or reasons. First of all, we need to
come up with something because the Government have decided to
do away with the post of the Lord Chancellor who embodied a set
of checks and balances which now need to be re-established. Secondly,
there is the issue of perception. Thirdly, I think that the work
of Sir Colin's Commission has indicated that there are technical
deficiencies in the process which could do with some professionalisation.
Lastly, there is the Government's legitimate concern for more
diversity and indeed that is not just the Government's concern.
So, I think there are a range of reasons apart from perception.
Q62 Ross Cranston: Can we talk about
the nature of the Commission's recommendations. First of all,
Roger Smith, I think your recommendation is for a hybrid whereby
the Commission would make the appointments without any ministerial
input at one level and, at a higher level, there would be ministerial
input.
Mr Smith: We are just a hybrid
and this was something to which we gave a lot of discussion in
the Council and, in the end, we came to the position which was
a hybrid in the sense of appointing for the lower judiciary and,
in relation to the senior judiciary, High Court and above, essentially
appointing a commission but with a fallback power for the Secretary
of State or the Prime Minister, depending on what level of appointment,
to veto an appointment for cause.
Q63 Ross Cranston: I was trying to
find the passage but you heard Sir Colin Campbell on whether there
should be one name or three names . . . Where does JUSTICE come
out on that?
Mr Smith: JUSTICE comes out essentially
with one. Robert has a different view.
Professor Stevens: Yes. I think
that is a mistake. I think it comes from an overzealous concern
with having a lay minister make those appointments. I come at
it from a different point of view. I think there is a very strong
case for democratic legitimacy. I am worried that the judges have
been involved in battles with the Home Secretaries, both Michael
Howard when he was the Conservative Home Secretary and now David
Blunkett as the Labour Home Secretary. I think that this House
should not exhibit a total lack of interest in who are appointed
as judges. I am not in favour of political appointments in any
sense. Nevertheless, we have to have a judiciary which has legitimacy.
The reason why the judges and senior lawyers are very nervous
about having a lay minister formally receive the recommendations
from the Commission and make the appointment is, bluntly, they
are worried that the quality of MPS has been dropping over the
years. As the presidential system continues, both with contributions
from Margaret Thatcher and perhaps the current Prime Minister;
there is a worry on the part of judges and senior lawyers that
the quality of Members of Parliament—and thus ministers—will
drop still further. As you change your procedures to make it very
difficult for distinguished barristers to be Members of the House,
there is a concern that there is a great dichotomy between the
lawyers and the laymen and that a lay minister will no longer
understand judicial values. In 1960, 25% of the judges had either
been MPS or had been candidates. Today, virtually none, perhaps
none, of the senior judiciary. There has grown up a gap between
the judges, the senior lawyers and this House. There is lack of
confidence on the part of the judges. I saw one Lord Justice this
week announcing that if decisions were made by a lay minister,
the chances of Nazism would reappear. I think it is terribly important
to resist that tendency and to say, no, we are not moving to some
model where we make political appointments but there must be political
legitimacy because, over the last 30 years, as the judges had
been less politically experienced, they have had far more responsibilities
thrust on them. They have taken over responsibilities in competition
areas, increasingly in unions, or been given them; they have taken
responsibility in administrative law. The 1972 Act brought in
European law which gives the judges far more power. The Human
Rights Act gives judges a great deal more power. Devolution gives
judges a great deal more power. My worry is that, 10 or 15 years
down the road, there will be a very serious explosion and, unless
you maintain some democratic legitimacy in the appointment of
judges, that explosion will be very difficult to contain. So,
my concern is that certainly for the High Court judges—I
am assuming that a commission will send one, two or three names—the
decision must be made not by the Commission but by the minister.
When you come to the Court of Final Appeal, the new Supreme Court,
then I think the new Supreme Court will inevitably be deciding
cases which are on the periphery of law and politics and it therefore
becomes very important to have judges of experience outside the
courts. I think that you need to appoint people like Lord Reid,
for instance, who went straight to the Bench but had experience
as a Scottish law officer. Lord Somervelle went directly to the
Court of Appeal; Lord Radcliffe went directly to the House of
Lords. I think you are going to have to look certainly for some
judges from the Court of Appeal but a more widely-based group
for that final Supreme Court. How you ultimately get some political
legitimacy into the Supreme Court I do not know, but I have been
reading, since I gather Liam Fox is now co-Chair of the Conservative
Party, his little pamphlet Holding our Judges to Account
and he says that the House of Commons should interview all law
lords and any holder of high judicial office and vote on it. I
would not go that far but now that he has become, I take it, rather
influential, at least in Mr Bottomley's party, we probably ought
to take his recommendation very seriously.
Q64 Ross Cranston: Could I just move
on because I have limited time. I agree with what you have just
said but that is beside the point. You made another important
point in your very interesting article and also your other writings
about imagination, that you do not necessarily get the imaginative
appointments when you have appointment by committee. How do we
overcome that problem?
Professor Stevens: You, by implication,
raise a number of things. There is a danger that if you make appointments
by committee, they will tend to be safe. You will certainly get
very few bad appointments. Whether you will get the imaginative
appointments, and I give some names there: Lord Mackay was very
good on making imaginative appointments to the Bench which have
turned out to be hugely successful. I think the really imaginative
appointment is one of the things you are going to lose. Nevertheless,
by requiring not one name but several names, you stand a chance
of making certain that the minister has an opportunity to reach
down and bring out some really talented person who may not be
the number one on the list from the Commission.
Q65 Chairman: I think that Mr Smith
wants to get a word in! Could I ask him, in doing so, to tell
us whether JUSTICE might have views on the sort of situation which
we may now envisage following what Professor Stevens has said
where you would have ministers deciding between what I might call
liberal constructionist and conservative constructionist, not
using the term in a party political sense but as to how they are
prepared to use the law. In the American Supreme Court, justices
are labelled and chosen.
Mr Smith: Mr Cranston has gone,
with his keen eye, straight to the difference between myself and
Professor Stevens. There are problems and there are advantages
and disadvantages in any way when appointing the judiciary. One
of the advantages we have had, certainly in recent years with
Lord Chancellors, is that we have had no problem about the independence
of the appointments that have been made to the senior judiciary.
We have to cast a wary eye on how we protect that position because
Robert makes his argument with a mischievous attraction because,
how outrageous to say that the quality of parliamentarians has
declined. I thought it had increased! The pressures on a minister
are actually structural. Governments want to get things done.
You can see in the Human Rights Act, you can see in controversial
areas of policy like asylum and you can see in areas like sentencing
structural problems for ministers and governments in relation
to the judiciary, which underline why there should be a separation
of powers. As I say, we went through a process of looking at various
models. We began with Robert's paper and we moved away from it
because, on balance, we think you should a commission which is
essentially an appointing commission, so that it is they who make
the decisions, not ministers. They have to be kept out of it because
there is no way that they will be able to avoid or be seen to
avoid impartiality.
Q66 Chairman: The phrase, "We
want judges who are prepared to help us" seems to come to
my mind; does that not strike you?
Mr Smith: If the aim of Government
was the smooth running of the constitution, that would be a perfectly
reasonable thing for them to say.
Q67 Keith Vaz: Much of what you have
said could easily be put into the present system. I know that
Professor Stevens said that the system was not evil. That is of
course much of an exaggeration. You think the system is okay in
producing people of integrity but that the process should be improved.
Do you think we could adapt some of the things that both of you
have said in the various papers to the present system and therefore
ensure that we get greater transparency without changing the final
way in which people are reporting?
Mr Smith: No, because you cannot
have the present system because the present system depends upon
the Lord Chancellor and the Lord Chancellor's post has been abolished,
so there is no present system. Something has to be constructed
in its place. So, yes, no doubt there will be an import of existing
procedures and all the rest of it but you are in a greenfield
site where some new structure has to be built.
Q68 Keith Vaz: Turning to the new
structure, your paper suggests that the Law Society and the Bar
Council should not be nominated organisations. As someone who
has worked for the Law Society until recently, what is the problem
with the two main bodies representing lawyers having nomination
rights?
Mr Smith: Like Sir Colin, I would
not go to the wall in relation to the composition of the Commission.
What you want is a commission which will carry credibility publicly
with the judiciary, with you as parliamentarians, and there are
various models that you can come up with. We came to the view
that there were advantages in terms of minimising those who might
be there with a mandate of some kind. I have worked for the Law
Society, albeit for a short time, and it would be difficult, I
think, for someone nominated by the Law Society not to feel that
they were a representative of that body. I think the same may
well be the case for someone nominated by the General Council
of the Bar. I have been very impressed by the way Sir Colin has
melded an organisation, a unity, in his Commission and I think
it is correct to say that that is the model you would go for.
You would want a commission which was operating as a whole.
Q69 Keith Vaz: In terms of the lay
and legal appointments, why not open all those appointments up
to competition?
Mr Smith: In relation to the lay,
I would; I have no problem with that. I think that, in relation
to judicial appointments, that would be difficult. It may well
be an interesting idea.
Q70 Keith Vaz: In terms of competition
for the Commission, you have no problem opening all those appointments
up?
Mr Smith: The lay ones and those
who are representative of the legal profession and academics and
I think it is important that there is a high-level academic there.
Yes, I think they should be transparent and advertised.
Q71 Keith Vaz: You heard my exchange
with Sir Colin when he described the types of people who were
the lay members who sat on his Commission and he felt that that
was a reasonably good model. These are all the elite. This is
the good and the great from Marks & Spencer, BT and all these
great retailers. What about the public? How do the public feel
an affinity? How do they get on this body?
Mr Smith: I think that the answer
comes at two levels. First of all, the formal level is that you
develop a job description of these posts and you advertise and
so you get the best people who come. I think that there is a job
which has to be done in relation to these appointments and one
does want people who are going to contribute to that process and,
provided that they can satisfy you that they will, then, fine.
Q72 Keith Vaz: The perception in
the abolition of the post of Lord Chancellor opening all this
up to the public is that real members of the public should sit
on them, ordinary blokes and blokesses. It should not just be
the great and the good, should it?
Mr Smith: I would have a high-level
job specification. Our view is that all 15 members of the Commission
should make appointments at the highest level, which would be
for this body the Court of Appeal, and you would want every person
on that Commission to be capable of participating fully in that
process intellectually and in terms of an understanding of the
best practices for human resource appointments. I would have no
proscription about where those people might come from. In fact,
I think you would tend to find that they come from an HR profession.
I would have thought that one of the things this Commission could
do and bring to the table which is not available in the old LCD
as it was is the experience of human resources as a profession
at the highest level. So, somebody who has done it for BT, to
take an example, can do it for the judiciary and I would have
thought that would be a real asset and something you would really
want to get.
Professor Stevens: I think I would
like to respond to this point. I think it is terribly important
to get as broad a judiciary as possible, again because that is
where the important decisions about fundamental assumptions are
made, especially in the Court of Final Appeal, but I think it
is very important throughout the judicial system. At the same
time, you have to bear in mind that I earn my living as an American
lawyer and I think it is a great contribution that Britain has,
or England has as I should say more accurately, is that the High
Court is really excellent. You can good, swift justice here and
therefore you would advise clients, if they are fighting a case,
to have it heard in London rather than New York. I think it would
be a tragedy if engaging in what is, I think, a very important
and legitimate goal, you in any sense undercut choosing the very
best judges and I think to choose the very best judges, you need
to get a group of people who understand that and it may be that
taking a random group from the street would not be a necessary
way of ensuring that the judiciary remained at that very high
level.
Q73 Keith Vaz: We would want to maintain
that high level, so the appointment for example last week of Brenda
Hale, you would want to see a commission being able to come up
with a name like that.
Professor Stevens: I think that
is very important, yes.
Mr Smith: Yes and I think there
is a point behind that. There will be an extent to which the creation
of a commission will be just a more extensive way of doing what
we do now and there is a point I would like to make. I would want
this Commission to give us valued added, there is no point otherwise,
but actually a large part of its function will be doing more expensively
and more properly what has been done in the past and the Government
will have to come up with the money for that. It would be a tragedy
if that money were to come from the obvious sources within the
DCA budget, that is to say the Court Service, the Community Legal
Service and the Criminal Defence Service. I would hope that, in
your final paper, you would say something about the resources
which will be required both for this proposition and for the Supreme
Court because it would be a tragedy if there were just reallocation
from the DCA budget and no money . . .
Q74 Keith Vaz: One final question
about the academic members, as a lawyer as opposed to as a lay
member. What do you think having an academic member on that Commission
would bring to the table?
Mr Smith: I will answer the core
of your question because I would not go to the wall for how you
categorise the person. It seems to me that there is a real value—and
I have taken this from the experience in Scotland—in having
somebody on the Commission who is not a judge but is capable of
arguing at the highest level about the law and that is why we
would say that you want a really high-level professor effectively
who could take on a prospective candidate for the Court of Appeal
and test them and have a view which came from their understanding
as an academic not from their practice as a judge and one hopes
that the decisions would be that you would come to the same decision,
but that seems a really valuable cross-check on the decisions
which will undoubtedly have to be made about the highest level
of intellectual and legal ability.
Q75 Mrs Cryer: I wonder if you could
tell us a little more about your views on achieving some form
of diversity within the judicial appointments. We went, at a crucial
time as it turned out, up to Edinburgh and had a long chat with
their judicial appointments board and they talked about the trickle
up. It does seem a little slow. It seems that, rather than trickle,
it is more like a drip. I just wondered if you had any views about
this as to how you can address this problem and I am not just
trying to be politically correct here. I do live in Bradford,
very close to where the riots took place two years ago and there
was a certain feeling within the local community that there was
an `us and them' situation which may have improved had we had
the odd ethnic minority judge around Bradford at the time. I am
making in no way a criticism of the judgments that came out of
those court cases, on the contrary, but clearly there is a problem
with this `us and them' situation in certain cities. I think Roger
Smith probably wrote the submission to the consultation, so I
am probably reading back to you what you said, but I think it
is so good that it needs to be put there. "There should be
no conflict between appointment criteria that include a requirement
of merit with an objective of diversity, though this is sometimes
erroneously argued. There must be no diminution of the quality
of our Bench and in particular its independence of Government.
An independent and courageous spirit must remain a major criterion
for senior judicial appointments." So, how can a new commission
ensure a more diverse judiciary and will the trickle up fade away
or does the process need to be accelerated and how can the Commission
ensure an independent and courageous spirit amongst the judiciary?
Professor Stevens: The 1993 report
from JUSTICE on the appointment of judges did go into this and
it was one of the reasons that we recommended appointment at an
earlier age with the possibility of promotion. It was not received
with massive enthusiasm by the profession, but I think it does
make it very possible to bring in a wider range of persons; it
makes it more possible to appoint solicitors at least at that
time and I am sure Roger has the most recent statistics. At that
time, there was just a much wider range within the solicitors'
profession and certainly if you appoint judges who go up a ladder,
there is a real opportunity to bring in minorities and there is
a real opportunity to bring in women at an earlier age and the
expectation is that they will rise. It depends a great deal on
how effective this Commission is but not only in its appointments
but in also making certain that there is a reasonable cursus
honorum in order that people actually come up through the
ranks. That certainly would help. The English legal system is
very oral. It means that the Bar tends to dominate and therefore
judges tend to be chosen from the Bar because its an oral tradition.
The profession has become better with minorities and in fact the
numbers going in are now quite high but, if you appoint judges
relatively late, minorities have not go there. It is not a profession
that is always easy for women to handle because, if the women
stop to have children or have children and work part time, working
part time at the Bar sometimes does not work; it is a very difficult
and complex thing. So, it is not easy, but I would hope that there
would be a commission that would really take this as a serious
brief and move the whole thing forward. I think there are all
sorts of reasons why there are not a lot more women and minorities
on the Bench at the moment. The explanations given are sometimes
legitimate and sometimes, in my view, disappointing.
Mr Smith: I think that all your
three witnesses this morning are singing from the hymn sheet in
relation this. This should be a real benefit (a) of a government
which are really saying they are committed to diversity and (b)
the establishment of a commission which will presumably have a
statutory objective to see it through, and those are my words
and I do think that a general encouragement of diversity is compatible
with decisions on merit at the point of individual appointment,
but I think there is a tremendous opportunity to make appointments
of people at around age 30 and to develop, as Sir Colin said,
a new route. It seems to me there is a possibility of a British
compromise in terms of retaining a judiciary which has had some
experience of practice but which is much more of a career judiciary
and that you could think of being a district judge or the chair
of a tribunal in your thirties and that that would open up a career
which could go to the very highest point. I think the truth is
that should be relatively easy in relation gender. To French judges,
certainly at the junior levels, there are many more women judges
in France and one of the reasons for that is that it is salaried
employment. It is, to be honest, low-status appointment compared
with private practice, but it is also employment which is quite
compatible with domestic responsibilities. So, I think that you
could, if you gave yourself the objective of opening up the judiciary
to women, do it and you could use tribunal and the lower level
appointments to do it and you Could target, advertise for and
proclaim a policy of trying to get women in their thirties. I
actually think that it is a lot harder in relation to ethnic minorities
because although there are increasing numbers coming through,
I think there are still going to be difficulties about getting
sufficient numbers of ethnic minority entrants into the judiciary
and that will take quite a lot of work and it is not really a
problem which can be cut from the problem of getting those people
to enter the profession.
Professor Stevens: It is of course
one of the advantages of thinking much more broadly when you come
to the Supreme Court about who you appoint. You would want to
appoint some judges from the Court of Appeal but you would also
want to bring people in from the outside which would make it much
easier to bring in ethnic minorities and women.
Q76 Chairman: I wonder if we could
turn now to the Supreme Court or the Court of Final Appeal. The
use of those two terms is actually a prelude to asking you what
you think this court is really all about. Is it a body which,
like the House of Lords, resolves fundamental issues which arise
in the course of individual cases or is it just another opportunity
to take a case to another level of appeal?
Mr Smith: It is also again a way
of sorting out a constitutional problem. It is about separating
the existing House of Lords away from the House of Lords in its
judicial role away from the House of Lords in its legislative
role, to which again I just want to make a preliminary point and
that is that there is a cost and it will be quite a large cost
and, in a sense, there will be a cost for no benefit other than
perception. In terms of its role, I do not think that we envisage
the role changing that much. It will be the Supreme Court of the
United Kingdom. I think there is an extent to which merely changing
its name will give it a lighter resonance.
Q77 Chairman: But it is not in respect
of Scottish criminal cases, is it?
Mr Smith: I think if it becomes
the Supreme Court for the United Kingdom, logically and sensitively
you have to set up mechanisms by which perhaps over time there
is common entry from all parts of the jurisdiction on common terms.
There has to be some lead capacity at a lower level, but in essence
I think the Supreme Court should be deciding its own case load.
Q78 Chairman: You started by saying
it is really about taking the law lords out of the House of Lords,
separating them out, separating the powers, you then moved your
position to say this court is going to be different. It is going
to, in your view, acquire a jurisdiction in relation to Scotland
which it does not at present have.
Mr Smith: That was partly a desire
and partly a prediction, yes.
Q79 Chairman: It is also your view,
is it, that the Judicial Committee with the Privy Council's devolution
responsibilities should move to this court?
Mr Smith: Yes, and that in time
the Judicial Committee should wither on the vine.
Professor Stevens: I would certainly
agree it is time, politely, to put the Judicial Committee out
of business. Its professional appeals ought to be going to High
Court judges and not to an expensively staffed court.
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