Examination of Witnesses (Questions 120
- 139)
TUESDAY 18 NOVEMBER 2003
PETER WILLIAMSON,
BARBARA CAHALANE,
MATTHIAS KELLY
QC, RICHARD DRABBLE
QC AND ELIZABETH
GLOSTER QC
Q120 Chairman: I think we need to
turn to the model and structure of the Commission because you
both have views on different aspects of this. For example, I think
Elizabeth Gloster has indicated that in your view the legal members
of the Appointments Commission should be appointed by the professional
bodies rather than as a consequence of straightforward open competition.
The pattern we observe in Scotland, for example, is that their
Appointments Commission miraculously had what seemed like the
most appropriate person for the Faculty of Advocates but who had
arrived their by open competition. Whether such a neat solution
would arise in England I am not sure. Should it be open competition
or should the professional members have some kind of representative
role?
Ms Gloster: You will have seen
from our paper that we took the view that it is important that
the Commission reflects a suitable amount of judicial knowledge
about applicants and therefore, as you see we recommended, there
should be a considerable number of members of the Commission who
are judges, not just Court of Appeal judges but also representatives
of the Circuit Bench and the District Bench as well as the High
Court Bench. We do not see that there is any utility in open competition
for such places. We think it is more sensible, as we have said
in our report, that they are put on there by the Judge's Council
or ex officio in the case of the Lord Chief and the Vice-Chancellor.
We consider that the other two members from the Bar and the solicitors
profession should be appointed by their professional bodies. We
think that there will not be a vast desire for people to sit on
this Commission in the sense of open competition being necessarily
the best way of producing the appropriate person to go from the
relevant levels. So far as lay members are concerned, we have
identified how we think members should be appointed. That is at
paragraph 48 of our paper, page 25, where we think there should
be an independent appointing body who appoints appropriate lay
members.
Mr Kelly: Could I add in respect
of the lawyer members, we think it is important that the Judicial
Appointments Commission should command the respect of the professions
and that is one of the reasons why we have suggested that there
be two practising lawyers—as opposed to judges on it—one
barrister, one solicitor nominated by the heads of the respective
professional bodies for that reason.
Mr Williamson: If I could start
by picking up the last point that was made, we do have a different
view. We do believe there should be a practising solicitor and
practising barrister, but we think they should be selected in
accordance with the Nolan principles. It is not right that the
two members should be representatives of their respective sections
of the legal profession because they may be seen to be representing
the interests of that particular group. We would therefore go
for open competition for one barrister and one solicitor. I think,
Mr Chairman, this is the area where the Law Society differs most
from the Bar in the terms of our responses, and you will have
read ours (it is around pages 19 and 20). We believe that the
Commission should have a lay majority, ie if it is 15 members
then it should be eight lay people and there should be a lay chairman.
I would concede that there should be senior judges also on the
Commission and I would concede that it may be appropriate for
the Master of the Rolls and the Lord Chief Justice ex officio
to be members of the Commission. Our basic point is that we go
for open competition for all its members subject to the Nolan
principles.
Ms Cahalane: We feel that the
current Commission for Judicial Appointments—although it
has a different remit—has demonstrated that plenty of high
calibre people of a non-lawyer background were interested in serving
on that Commission and they are well able to do two things. One,
to command the confidence of the professions, the judiciary and
the public, and second to grapple with the issues surrounding
independence of the judiciary, judicial appointment, and all of
the other important issues that are at stake in these consultations.
Q121 Ross Cranston: Do you not have
a problem, in terms of your approach, of infinite regression?
Who then selects the people who are going to select the people
who compete? And who is going select them?
Ms Cahalane: We have suggested
in our response a Nolan type board. We have suggested the First
Commissioner for Public Appointments, a HR specialist, a senior
judge and the Lord Chief Justice or a very senior judge, and then
one independent member of the panel.
Q122 Chairman: These are going to
be selected on the Nolan principles as well, are they? The Bar
Council have the view that a majority of judges is somehow necessary.
Ms Gloster: That reflects the
European Charter on the statute of judges. What is the reason
for it? When you are selecting judges to sit at Circuit Bench
level and High Court level one does need on the selection panel
to have people who actually know about the potential judicial
abilities of the candidates. Whereas I can quite see—and
it is reflected in our paper—that there is a need for an
appropriate number of lay representatives, one must not lose sight
of the fact that in order to uphold the merit principle there
is a need for the appointing body to have knowledge of the qualities
of the applicants.
Q123 Mr Soley: Do you agree that
the Bar Council has two problems with your model? The first is
that what we are doing is opening this up to much more public
scrutiny and people will look at your model and say, "There's
a majority of judges on here". It is a bit like the old Press
Complaints Commission where there was a majority of editors on
it. The second problem with it is that particularly if you have
people on there selected from the Bar (or whatever) by the Bar,
then at best you will have a representative, at worst you will
have a delegate.
Mr Kelly: What we are speaking
about is one barrister out of 15 people on it. It will be a representative.
I understand your argument about delegates, but as I understand
the position even members of Parliament are representatives rather
than delegates. You are elected to represent an interest. This
is solely in order that the professions can be assured and can
retain confidence in the workings of the Commission. As for the
judges, I am not aware myself that there is any suggestion made
by anyone that the judges are not capable of being trusted to
actually carry out the task that is given to them with complete
intellectual integrity and integrity in every other fashion. We
think that it is important that we do adhere to European wide
standards and standards that, as a country, we have been rather
keen to encourage others to adhere to, particularly in Africa.
Successive United Kingdom governments were at pains to insist
that Judicial Appointments Commissions consist of a majority or
judges.
Mr Williamson: I do not doubt
for one moment the ability of the judges to do this work, of course.
It is very important that the confidence of the profession is
maintained, but that is secondary to the public interest. I think
that the public interest today demands much, much more lay involvement
than we have had hitherto. It is really for that reason that I
believe that there should be a lay majority on the Commission.
Q124 Mr Soley: You are in a situation
where, as Mr Williamson said, you are going to be open to much
more public scrutiny and people will ask why there is a majority
of the profession on this. I am not sure you have given sufficient
weight to that. I do also say on your member who represents or
who is a delegate of, that arguments about the House of Commons
do not wash in a sense because if it did we would have the whole
of your Committee like that and that would be a bad thing too.
What I would be saying to you really is that I would not have
any on there who are a delegate or a representative in any way
because they will end up as the lame duck member because they
will be seen as the voice of that group.
Mr Kelly: In that case if they
are merely one member they are not going to have a decisive impact,
are they?
Q125 Mr Soley: It affects the confidence
of the public, though.
Ms Gloster: Can I give you an
example about how the selection process will work. Let us say
you have an application to become a High Court judge from a practitioner,
whether he be a solicitor or a barrister on the Circuit. Who knows
about the abilities of that particular prospective candidate to
become a judge? He has appeared in courts in front of whom? In
front of local judges on the Circuit, perhaps in London. If you
have only lay members or a majority of lay members you will be
judging that person's ability to complete an application form
and how he or she appears in interview. You cannot underestimate,
in my opinion, the local knowledge—whether we are talking
about an applicant to the District Bench, the Circuit Bench or
the High Court Bench—of people who have seen the man operating
in practice or if they themselves are not on the Commission of
soundings they have taken from people who practise in that area
or have seen him practise.
Q126 Chairman: In practice it does
not depend on whether the composition of the Appointments Commission
is a majority of judges.
Ms Gloster: The point I am making—and
this is another of the points we make in our paper—is that
there ought to be (and we recommend) abilities to co-opt people
onto the particular committee that is making the particular appointment,
if one is talking magistrates or district judges and reporting
to Parliament.
Q127 Ross Cranston: I think there
are some very fundamental social forces here so the question I
have is, is this Commission going to produce the changes you want?
If I look at local government in my area and surrounding boroughs
we have had Nolan principles for 10 or 15 years and yet with women,
for example, I have one woman who is the Director of Social Services,
a sort of traditional woman's role; in the neighbouring local
authorities there are very few women. Is this going to produce
the great results that we would all want to see, or do we have
to do other things? I am wondering if you are putting too many
eggs in one basket thinking that this is going to produce magnificent
results.
Mr Williamson: I do not think
this is going to produce all the right answers but we think it
is very much a step in the right direction along the lines that
is in the consultation paper, which is why we have supported these
measures for more than ten years now. I think it would go quite
a long way.
Ms Cahalane: You do have a point
and, in fact, in our consultation papers that is a concern we
have expressed: that the Commission, of itself, will not necessarily
lead to the desired policy outcomes that the Government has articulated.
It particularly will not do so without very clear terms of reference
and without adequate resources. We are very, very concerned about
the low estimate in the consultation paper. If this is a Commission
which is truly to encourage a more diverse range of applicants,
if it is truly to work with the professional bodies in removing
some of the systemic barriers—we all admit things have improved
but there is a long way to go—if it is truly to aim for
high quality and complete independence, then it will need substantial
resources. These things do not come cheap.
Q128 Ross Cranston: Does it not also,
as you have indicated, require a political will? You say that
will come from the way the statute is drafted; I would say it
will come from a definite policy from Government. You want to
reduce the role of the Government; you want to reduce the role
that the minister might have.
Ms Cahalane: Yes, we do. We have
suggested a number of checks and balances in terms of democratic
accountability through Parliament, but we believe there should
be minimal politicisation of the appointments process and minimal
political involvement in the final decisions.
Q129 Ross Cranston: Do you not possibly
then get unimaginative appointments because committees typically
are going for the lowest common denominator?
Ms Cahalane: But equally, if it
is left in the hands of the minister you could get equally unimaginative—
Q130 Ross Cranston: It depends on
the minister.
Ms Cahalane: Yes, it does. It
is a matter of luck. If you had a very conservative (with a small
"c") minister and the Commission put forward two highly
imaginative candidates and one safe pair of hands; the minister
might decide that she likes the safe pair of hands. Even with
a choice of three you could have that outcome as well.
Q131 Chairman: Are you in favour
of the minister having a choice of three?
Ms Cahalane: No, we are not. We
are in favour of one only for senior appointments with appropriate
consultation first with senior judiciary. One recommendation should
be put to the minister or the prime minister for recommendation
to Her Majesty.
Mr Williamson: Taking further
the point about resources, that is in terms both of money and
people. The Commission for Judicial Appointments and Sir Colin
Campbell have identified the importance of a chief executive of
sufficient character and calibre. Staffing and resources to make
this work is absolutely critical.
Chairman: This Committee has experience
of reporting on a body set up with high expectations which was
not able to meet them. You will see from our report on CAFCAS.
I want to turn to the Supreme Court itself now.
Q132 Dr Whitehead: Both the Bar Council
and the Law Society have indicated that you feel it would be inappropriate
for senior holders of judicial office to be members of the House
of Lords and indeed should not sit or vote during the currency
of that office. That is a joint reflection on this, is it not?
Mr Williamson: Absolutely, yes.
Q133 Dr Whitehead: However, at the
same time the Law Society evidence suggests that there ought to
be a mechanism by which members of the Supreme Court could make
known their thoughts on issues of public policy by some means,
not entirely defined, but as a contribution to the legislative
process.
Mr Drabble: The Law Society has
said that. We have not said that save with one exception where
we have recognised the role that the Standing Committee on the
Scrutiny of European Legislation plays and put forward a distinct
proposal for reconstituting that Committee. I do not think that
is a universally popular view even with the Bar Council. It does
seem to me that if you are having the reform you recognise what
you are losing and one of the things you are losing is the role
of the Law Lords in particular in that Standing Committee. There
are no fundamental constitutional rules to apply if you are having
a statute establishing the court. You can, in that statute, give
the Law Lords back some sort of official consultative role. The
experience has been valuable both for the Lords and Parliament.
That is the basic thought. I think the Law Society thought is
probably similar. You could institutionalise in the statute if
you are starting from scratch a role for the expertise of the
existing members of the Court.
Mr Kelly: May I put one caveat
to that and that is my personal position is that you either have
a split or you do not. I find it impossible to imagine a semi-divorce.
Whilst I recognise the very good work that has been done—very
high quality work—I think that the reality is that when
you have a separate Supreme Court it means precisely that: the
relationship is severed and at an end. As Richard has said, that
is not a view shared by all of the profession that I lead, but
it is my view.
Q134 Dr Whitehead: My slight puzzle
is that why is it right that senior members of the judiciary might
make a contribution to legislature by passing comments on issues
of the day outside the House of Lords but wrong that they should
do so in the House of Lords.
Ms Cahalane: We would envisage
it very much as preliminary commentary before any debate or consideration.
It would not at all be involved in debates or decision making
on the actual legislation as it is going through the Houses of
Parliament and I think that would be the key difference.
Mr Williamson: At the moment the
Lords of Appeal in Ordinary sit in the House of Lords in addition
to other holders of high judicial office such as the Master of
the Rolls and the Lord Chief Justice. We believe that sometimes
the interventions—if only for the purpose of giving information—have
been extremely useful to both Houses in being able to obtain views
from particularly the Lord Chief Justice and the Master of the
Rolls. Why we have said what we have said in our paper is that
we think that there might be an argument for the ability to seek
those views being retained, but, as Barbara says, not in any way
should the senior judges continue to be part of the decision making
process.
Mr Kelly: In a modern democracy,
as you well know, influential contributions could be made to the
public discourse well outside Parliament. It is a situation which
I hope would continue, that judges would feel able on matters
which they felt touched on areas where they had a particular contribution
to make to the public debate, that they would make their views
known. I have no doubt that they would. There are, for example,
such things as giving lectures, speaking to newspapers and so
on. All of those contribute to the public debate—the debate
that is actually going on in Parliament—but they do not
have to be uttered in Parliament.
Q135 Dr Whitehead: In terms of appointing,
the Bar Council have mentioned in your evidence that it is inappropriate
that there should be any executive involvement in appointments
for courts below the level of the Supreme Court, but there might
be ministerial involvement, that is executive involvement, in
Supreme Court appointments. Why do you make that distinction?
Mr Drabble: I do not think we
do make that distinction. There has been a debate within the Bar
Council—which is fairly faced up to within the reports—as
to whether there should be some ministerial role. At the moment
one candidate has been identified by either of the Commissions
and the Bar Council view as a whole—following last Saturday—is
that there should be a shortlist of one in both situations. However,
Elizabeth and I do not agree about this and it is fairly faced
up to in the paper. My own line is that it is important to have
some executive involvement because the executive does have an
on-going stake in the court functioning as well as having public
support, but a shortlist of one strikes the appropriate balance.
Q136 Dr Whitehead: Have you not been
attracted by the notion that the reforms essentially are perhaps
creating a greater separation of powers between executive legislature
and judiciary in the unwritten British constitution, and therefore
the appropriate checks and balances are legislature rather than
executive.
Mr Drabble: Confirmation hearings.
Q137 Dr Whitehead: I did not actually
say that.
Mr Drabble: Somehow or other you
have to get a check or balance in, it seems to me. If you go for
the model that is in the Bar Council paper—which is strikingly
similar to what the Law Lords themselves are putting forward—you
have a very small body that is making the appointments. You are
going to have a significant judicial input into that very small
body, whether it is a judicial majority or just a minority; whichever
it is you are going to have a lot of judges. If there is no executive
involvement the question is where is the legitimacy coming from?
Who is actually making the appointment but the judges themselves?
That does not seem to me to be a player, although we disagree
about that and the paper says that that will have to be debated.
If you go for confirmation hearings or some other check that is
Parliament I think the real danger is unimaginative appointments.
You come back into that part of the equation. You have the minister
facing a need to carry a Parliamentary majority behind a particular
appointment. You insert confirmation hearings into the United
Kingdom model and I think you get a minister who will not make
the imaginative appointment for fear of Parliament rebuffing him.
That is my concern. My paper is a fairly deliberate attempt to
tie the executive in enough to stop it disowning the judiciary
but without removing the room for the appointment of the imaginative
lawyer.
Q138 Dr Whitehead: The offer of a
choice of one and then a public reporting of the exercise of that
choice together with an account made to Parliament does not appear
to represent much of a role either for the legislature in any
way appointing or checking or balancing the role of the judiciary.
Mr Drabble: It is a long term
check and it is not intended to be any more than that. You get
legitimacy in the sense that the appointment is acceptable at
the moment it is made. I am fully aware of the argument that you
need some check or balance, that the appointment must be made
by someone other than the judges themselves, but that shortlist
of one seems at the moment an appropriate solution.
Q139 Chairman: Do I take it that
confirmation hearings do not fill you with excitement?
Mr Drabble: They do not strike
me as the right answer for the reasons I have already given.
Mr Kelly: What they do—or
are capable of doing—is shown by some confirmation hearings
that they have had in the United States. They do very, very little
to enhance confidence in the judiciary or in the entire system.
They reflect rather badly, in my view, upon all concerned within
it, not least those asking some of the more difficult questions.
Ms Cahalane: I think we have been
appalled by some of the recent coverage following the appointment
of Lady Justice Hale. It would be absolutely horrendous if that
type of coverage were to appear before a confirmation hearing.
If any candidate were subject to that kind of coverage from certain
sections of the media before they had to go before a confirmation
hearing we feel it would do absolutely nothing to improve public
confidence and it would impose a burden on candidates themselves
that may well put some potential candidates off.
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