Examination of Witnesses (Questions 99
- 119)
TUESDAY 18 NOVEMBER 2003
PETER WILLIAMSON,
BARBARA CAHALANE,
MATTHIAS KELLY
QC, RICHARD DRABBLE
QC AND ELIZABETH
GLOSTER QC
Chairman: Good afternoon everyone and
welcome to the Committee. We are very glad to have you with us
today. Before we start I think there might be one or two interests
we could usefully declare.
Ross Cranston: I am a recorder and barrister.
Mrs Cryer: I am Ann Cryer. I am a member
of the Supplemental List of Bradford Magistrates.
Keith Vaz: I am Keith Vaz. I have instructed
Mr Drabble on a matter in the past and my wife served with Mr
Williamson as a member of the council of the Law Society.
Mr Clappison: I am a barrister but I
do not practise.
Q99 Keith Vaz: I would like to ask
the Bar and the Law Society what the professions have done to
promote diversity.
Ms Gloster: I think there has
been quite a lot of encouragement in relation to both women and
ethnic minorities. The Bar itself and Chambers substantially encourage
applications from a wide pool of applicants for pupillages. I
am not talking now about judicial appointments because that is
something slightly different, but certainly in relation to applicants
for Chambers the Bar is very conscious indeed of the need to recruit
the best people from the widest social and cultural backgrounds.
Certainly in my experience over the last however many years—probably
more than I care to mention—one has seen, as entrants to
the profession, many more women and many more people from ethnic
minorities and the message goes out from Chambers—certainly
in the field that I practise in, which is the Commercial Bar—that
we want the best people irrespective of gender, race or background.
Q100 Keith Vaz: If you look at the
Bar Council—and indeed if you look at the Law Society's
Governing Council—how many black and Asian people sit on
the Bar Council's Governing Body and how many of them are women?
Ms Gloster: I do not know the
answer to that because I am not a member of the Bar Council myself.
I could not tell you, but maybe somebody can. Maybe the Chairman
of the Bar can help you with that.
Mr Drabble: Not many.
Q101 Keith Vaz: How many?
Mr Kelly: I am quite happy to
supply the answer.[1]
Q102 Keith Vaz: I would be quite
happy to have the answer.
Ms Cahalane: I can answer for
the Law Society. Twenty-four members of the Law Society's Council
are women. That proportion has increased substantially in recent
years. I am relying on memory but I think there are five members
who are of an ethnic minority origin.
Q103 Keith Vaz: Out of how many?
Ms Cahalane: Out of a Council
of one hundred. In terms of encouraging diversity, the solicitors'
profession, I think, is in the happy position where now some 16%
of new admissions describe themselves as of an ethnic minority
origin. However, we have been monitoring what we call a cohort
very carefully over the years and what we know is that, nonetheless,
those solicitors still suffer considerable progression and promotion
barriers once they enter the profession. We have been working
hard with the City and with the profession in general to raise
awareness of that. We also have a diversity access scheme which
is designed to open up the profession to people from backgrounds
who have not thought in terms of becoming a lawyer. We have run
seminars with school children from various districts and backgrounds
where it might not be part of their expectation. There is always
more to be done.
Mr Williamson: Could I add to
that? I think so far as women are concerned at the moment the
figure is 60% of admissions into the profession and 40% men. That
has changed considerably. Just to pick up a point Barbara made,
our Council can, in fact, be 105 members including five lay members.
We do not have a hundred other members at the moment because there
are vacancies. Excluding the lay members it is just less than
a hundred. Indeed, since I became a Council member in 1992 the
number of women and council members from ethnic minority backgrounds
has improved substantially. The number of women has multiplied
three fold in that period.
Ms Gloster: Can I give you some
figures on the intake to the Bar? Certainly today it is a far
more diverse profession than it has ever been before: 18% of our
intake are from an ethnic minority background; 49% are women;
10.5% of the Bar overall are from an ethnic minority background
and 30% overall are women. I am told that we hold our career fairs
jointly with the solicitor's profession and those career fairs
do encourage applicants from ethnic minority backgrounds and from
women.
Q104 Keith Vaz: When the Government
announced the changes which led to this inquiry one of the points
that the Lord Chancellor made was the fact that the judiciary
had to change. Everyone supports diversity; I do not think anyone
could turn round and say "We do not support diversity",
but they also end up by saying that if you are appointed you are
appointed on merit. Does the diversity principle undermine the
merit principle? If it does not, are we saying that there are
not sufficient people of merit amongst the black and Asian communities
to actually serve as judicial appointments at this moment? Where
are they all? Why have they not been appointed so far?
Mr Williamson: I would say in
answer to that that they have not been encouraged to apply or
they have been discouraged from making applications because of
the system for making applications for judicial appointment. It
is not user friendly for people from ethnic minority backgrounds
or, in many cases, for women who have had career breaks or people
in those sort of circumstances. It has been Law Society policy
for many years that we want to see a system that whilst not in
any way compromising on the principle of merit—which I think
we all agree is absolutely vital—is more user friendly for
people from ethnic minority backgrounds, disabled applicants,
solicitors and women.
Q105 Keith Vaz: As to the process,
do you think that the process we currently have—which relies
to a great extent on soundings—discriminates unfairly against
people who happen to be black or Asian and against women?
Mr Williamson: Yes.
Ms Gloster: I would not agree
with that at all.
Q106 Keith Vaz: Let us take the "yes"
first and then the "would not agrees". Who says, "yes,
it does"?
Ms Cahalane: The Law Society says,
"Yes, it does". The difficulty we feel with the heavy
reliance on soundings—particularly for the more senior appointments—is
that you have to be known and visible to the group who are automatically
consulted. It is more difficult for people who maybe are not in
the traditional clubby networks. It is more difficult for people
who do not have court-based practices to become known to that
group. We feel that both the perception and the reality of that
can be quite a discouragement to people. We hope very much that
the new Judicial Appointments Commission would have a very specific
charge of going out and helping to identify people who have the
potential to demonstrate the right kind of merit; and encouraging
them to put themselves forward. However, they must apply a much
more modern application process and then merit becomes the overriding
factor. The key to more diversity is more encouragement and helping
people recognise that they can meet the criteria.
Q107 Keith Vaz: Ms Gloster, you disagree
with this.
Ms Gloster: I disagree, certainly
speaking from my own experience and Matt Kelly will supplement
that with some figures. At every level below the Court of Appeal
application for judicial appointment is now by application, as
I understand it. There is no sense in which the application forms
are not user friendly. At every level there are ethnic minority
and women applicants. The reason why the figures do not reflect
the numbers of people there are at the Bar I think is historic
and I think there is still a catch-up time which is being addressed.
It is a question of time. Why are there not women in the House
of Lords? Answer: because it has taken time for women to work
through the system.
Q108 Keith Vaz: The Lord Chancellor
has just appointed the first woman Lord—it is the first
time in history that it has been done—under the present
system. It might be put to yourselves as professionals representing
barristers and solicitors that you have failed to encourage black
and Asian people and women to put themselves forward for these
appointments. When they look at the Law Society they see a long
running legal case on racial discrimination. When the look at
the Bar Council they say they cannot even get pupillage they are
black and that is the problem about becoming pupils in the current
set up. How can you convince this Committee that you, as professional
bodies, are taking this issue seriously, apart from the fine words
on diversity which we can all repeat?
Mr Kelly: I do not accept what
you say. That may have been true at one time. The Bar now is far
more diverse. I do not come from a background which could be said
to be that which reflects the average intake to the Bar. It has
changed enormously. We now have in place rigorous anti-discrimination
policies. We work pro-actively to assist any applicant coming
to the Bar who believes that they have a problem and we are sensitive
as to how that might be dealt with. We do not expect them to come
out shouting from the rooftops on that. We have effective rules
against discrimination and one of the things that has happened
is that where Chambers are required to pay for pupils and to see
that as an investment, then what Chambers are looking for are
the most able candidates. It is a matter of total indifference
as to what their gender, social or economic background, colour
of their skin is. What you are looking for is the people who will
best repay the investment. If you look at that cohort that is
going through—some of whom are already at silk, some of
whom are ready to go onto the Bench—it is far, far more
diverse. Elizabeth gave you the answers on that. It is not a matter
for us as to who made the appointments in the past. We know it
was government that made the appointments. That, hopefully, will
all change in the future and it is a matter of regret to our profession
that it has taken this length of time for a women to reach the
highest court in the land.
Mr Williamson: I agree with a
lot that Matt Kelly has said; it applies equally to the Law Society.
We have an anti-discrimination rule which we are in the process
of—if I may use the expression "beefing up" with
a view to enforcing it far more rigorously than we have in the
past. We have outlined the changes over recent years in Council
members, both of women and of people from ethnic minority backgrounds,
and we are determined to do all we can to encourage those people
to make applications for judicial appointments. We are actively
running seminars and such things to explain to them how they can
do it and the best way to go about it.
Ms Cahalane: We have been campaigning.
We had a paper as early as 1990 called Broadening the Bench.
We have been campaigning for a Judicial Appointments Commission
and for changes to ameliorate the flaws as we see them in the
current system. We have been campaigning for quite a long time
on that and have worked with the former Lord Chancellor's Department
and now the DCA on information evenings which are very much targeted
towards women and people from ethnic minority backgrounds in the
profession.
Q109 Keith Vaz: Has the Cavendish
case helped or hindered your campaign?
Mr Williamson: I do not think
it has helped, but if I may I would rather not get involved in
that.
Q110 Keith Vaz: Can you just say
whether it has helped or hindered?
Mr Williamson: It has not helped.
Q111 Ross Cranston: Keith Vaz has
identified a problem and you have spoken about some of the solutions
such as going out and encouraging people. However, the law is
not unusual. If you look at business or the newspapers, or even
the House of Commons, there is this accretion of women and black
and ethnic minority people as you proceed up the hierarchy. I
think it is important to appreciate this is a society problem;
I think you would probably agree with that.
Mr Kelly: I think that is right.
One of the things I would point is that for a number of years
now we have been very active on this front with our equal opportunities
department and equal opportunities officers. Before this we also
had the Glidewell report which was specifically charged with looking
into how you promote diversity in the judiciary. This was long
before the DCA copped onto it. We were pushing it and that is
what led, in the early part of this year, to a new momentum for
reform. You will see it attached as one of the annexes to our
response to the DCA report on judicial appointments.
Q112 Mr Soley: Mr Williamson, in
answer to my colleague Keith Vaz you said the explanation for
under representation was a lack of being user friendly; you said
it was not user friendly. Can you define what you mean by not
user friendly and can you tell me what has been done or is being
done to make it user friendly?
Mr Williamson: I think it is a
point which has already been referred to by other witnesses. It
is that the reliance upon secret soundings has made it more difficult
for people from ethnic minority backgrounds and for women, for
example, to be known to the people who give views on the candidates.
Therefore they feel at a disadvantage and that in itself stops
them from applying.
Q113 Mr Soley: You mean they are
not user friendly in that very narrow sense.
Mr Williamson: Yes, I do.
Q114 Mr Soley: It is very specific.
Mr Williamson: Yes.
Ms Cahalane: Also candidates,
even if they are not applying for an appointment at a level which
attracts automatic consultation, have to nominate up to six "nominated"
referees. Again, this can be difficult if you have had a career
break, or have been out of practice, or do not have a very high
profile type of practice. Often women can underestimate themselves
and feel that they will not be able to nominate a sufficiently
well-known group of six nominated referees. People from diverse
backgrounds might feel that disadvantaged they cannot put the
name of, say, three judges down as six of their referees. It is
their perception and they feel disadvantaged by some aspects of
the system.
Mr Kelly: Peter used the phrase
"secret soundings"; I am afraid I do not go along with
that. The people who are asked their opinion are always named,
they are named at the back of all the material that goes with
it. In common with many other consultation processes—for
example job referees—it works well and to encourage frankness
we have confidentiality. I do not see what is particularly secret
about it when every person who is consulted is actually named
and everyone knows who they are. I therefore have slight problems
with those two words "secret soundings".
Q115 Chairman: One of the proposals
that has gained some currency to address the lack of diversity
in the judiciary—and it relates of course to the state of
progress through the profession of minority groups and women—is
the idea of entering the judiciary at a younger age. I would be
interested in the views of the two bodies on the implications
of this and whether it would achieve the desired purpose or is
undesirable on other grounds?
Ms Gloster: I think it is very
important that the principle of merit is upheld. I do not think
that that precludes the possibility of judicial experience at
an earlier age. Today the system, as it presently works, enables
people to sit as recorders or to apply to sit as recorders or
become appointed as recorders at a relatively young age. I am
talking about mid-30's to late 30's, depending on the ability
of the candidate. Likewise, there is an ability to sit as a part-time
district judge or as a magistrate. If you look at the paper that
we produced on appointments and the Judicial Appointments Commission,
in paragraph 69 we propose a system for encouraging diversity
and applications in particular by people who have taken career
breaks to bring up children (mainly, I presume, women) which would
give a springboard back into the profession by putting them on
a special list as part-time recorders or district judges so that
they could see, having brought up a family, whether they wanted
to go back into the judging pool from which they could then be
taken for permanent appointment. That is the sort of procedure
that my working party has recommended. At the moment it is fair
to say there is an untapped resource.
Q116 Chairman: And on the Law Society's
side?
Mr Williamson: We agree with that.
The only other point I would make is that I think we very strongly
believe that people who apply for judicial appointments should
have a significant amount of experience in practice. We are not
advocating a judicial career from the very beginning. Earlier
entry is to be encouraged provided that the applicants have got
the necessary experience to be able to show that they are getting
their appointment on merit.
Q117 Chairman: So there is not a
general anxiety that lowering by five years, for example, the
average age of appointment to each level might take place. That
would not cause you anxiety as long as the merit principle was
being maintained.
Mr Williamson: Exactly.
Mr Kelly: That is right because
there is a need for people to have experience. A judge is likely
to develop most independence when he or she has had experience
of dealing with difficult clients, difficult tribunals. Factual
situations can put a tremendous amount of pressure on people to
go in a particular way and they learn to withstand that. Those
are the sort of qualities that are acquired over years of experience
in practice. The concern is that if you go back too far you do
not actually have people who have enough experience. The short
answer to your point is that lowering does not cause a problem.
Ms Gloster: But a career judiciary
would, in my opinion, undermine the principles of merit and independence.
Q118 Mr Clappison: I declare an interest
as a member of the Bar. Could I ask the representatives from the
Bar Council, in the light of what has been said about experience
and people rising to the necessary level of merit and the importance
of encouraging people to forward at the bottom end of the profession,
if you could say a little about what the Bar Council has done
to facilitate and encourage able people from the ethnic minorities
to apply for pupillages and obtain pupillages.
Mr Kelly: We have embarked on
a course of visiting new universities; we are specifically targeting
those. In the past there may well have been a tendency to go to
more established universities. That is something to which we have
devoted a great deal of energy and it is something which, as Chairman
of the Bar, I have spent a considerable amount of time encouraging
the Inns of Court to co-ordinate their efforts and enhance the
efforts they are making. At present we have four Inns who are
working somewhat separately; we want them to work together to
target this and pursue the work that has already been done. We
engage in career fairs to address the concerns and fears that
people have about a career in the law when they know nothing about
it and to show them that it is accessible to them. Those are efforts
which we intend to continue with and to accelerate.
Q119 Mr Clappison: In the light of
your own experience at the Bar, are you able to say anything about
how the number of people coming from ethnic minorities into pupillage
and into Chambers compares now with the situation 20 years ago?
Ms Gloster: It is entirely different.
I can speak from my own experience on this. When I came to the
Bar in 1971 I was told that I was not going to be given a seat
in Chambers because I was a woman. Today that sort of thing, certainly
in my neck of the woods—which is the commercial neck of
the woods—is simply unheard of. Everything is advertised.
There is a handbook. Anybody can apply. We select on merit. Our
Chambers reflects—perhaps more than others—a large
ethnic and cultural diversity.
Mr Clappison: So it appears that in respect
of both women and people from the ethnic minorities you are doing
better than any of the political parties, and certainly mine.
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