Examination of Witnesses (Questions 150
- 159)
TUESDAY 18 NOVEMBER 2003
DR KATHERINE
RAKE AND
SEAMUS TAYLOR
Q150 Chairman: Welcome to the Committee.
We are very glad to have both the Fawcett Society and the Commission
for Racial Equality represented by Katherine Rake and Seamus Taylor.
Perhaps it would be helpful if you could simply take on the discussions—which
you heard earlier—about diversity, what we should be doing
and why in the context of the Appointments Commission. I am giving
you the opportunity to refer to greater diversity on the judicial
bench as an objective.
Mr Taylor: We welcome the opportunity
to meet with you this afternoon and to engage in this discussion
and the opportunity we had to submit a response to the DCA consultation.
We see the modernisation of the judicial appointments system as
at the heart of the wider modernisation of justice in Britain.
We have a very particular interest in this and the issue we have
is in the diversity of judicial appointments but specifically
how race equality can be furthered in the process. Ultimately
the end state we believe is about enhancing public confidence
and enhancing the legitimacy of the judicial system. We believe
that in a modern diverse Britain having a diversity of the judiciary
goes to the heart of building that confidence and legitimacy.
From the CRE's perspective we would go so far as to say that success
on the diversity and race equality agenda will be a litmus test
for wider modernisation of the justice system and a modern effective
judiciary in 21st century Britain we would say would have to be
a diverse, high quality judiciary. There are a number of contextual
points that we would wish to make. The public confidence in the
judiciary is central to legitimacy and the judiciary, when presiding
over cases, are seen by the general public as the face or the
dispenser of justice and if judges are seen to reflect a narrow
social group then it is easy for people to allege that they may
be biased; it is easy for people to allege that they may be unsympathetic
or out of touch and whilst such perceptions may be unfounded they
can undermine public confidence and the legitimacy of judges and
the judiciary more widely. We know that there are particular issues
of low confidence levels amongst ethnic minorities, particular
in the criminal justice system and in part based on evidence which
shows racial disparities from the point of arrest through to sentencing.
The available evidence needs to be unpacked further to fully understand
what contributes to it and it may not constitute evidence of direct
racial discrimination but clearly race is a factor. The danger
to the judiciary is that in the absence of having an explanation
or greater diversity amongst the judiciary the data that is available
can undermine public confidence and can be seen to be as a result
of discrimination. The CRE believes that a more diverse judiciary
which is appointed on a transparent appointments procedure should
strengthen confidence overall within the wider justice system
and help remove some of the perceptions which exist. Our overall
aim is not just to get enhanced job opportunities for ethnic minorities
but it is to actually enhance the justice system such that it
is held in the highest level and broadest level of confidence
by the diversity of Britain today. In order to do that we feel
that there is a fundamental link between how justice is dispensed
and those who are dispensing it.
Dr Rake: I would absolutely echo
those points and I think that we have particular concern about
confidence in the judiciary in terms of the very gendered crimes
of rape, sexual assaults and domestic violence. We know, for example,
that as a marker of public confidence only 10% to 12% of women
who experience sexual assault are actually making a complaint
at all. Of those who do make a complaint only 6% result in a successful
conviction. Those are clear markers of lack of confidence within
gendered crimes in particular. I think there are a number of arguments
for why we need increased diversity. I think the judiciary is
absolutely at the heart of a functioning democracy and just like
representation in Parliament matters, women's representation in
the judiciary matters. Without representation we have women excluded
from a key set of decisions; men make up 49% of the population
but in the High Court are making 94% of the decisions. We have
a clear disparity there. I think that the experience of women
within the Criminal Justice System is often affected by that quite
heavily. Currently we are running a commission on women's experience
of the Criminal Justice System and what we are hearing from women
who have had experience of the Criminal Justice System is that
they feel outnumbered literally in court in the way that they
give evidence and the way they feel their evidence is perceived
is very much affected by that. I think also there is a symbolic
importance of having increased numbers of women in the judiciary.
The judiciary at its heart is about promoting equality and fairness
and it cannot be a system that excludes the majority of the population
from that; that would be anomalous. There are also issues about
the judiciary losing a very large pool of talent in this country
by not promoting women in equal numbers. I think there is a final
argument which is about women bringing a different perspective
and a unique experience to bear. This is an argument to be used
with great caution because it is a risk of stereotyping women's
and men's experience. Having said that, women's and men's experience
remain distinct and around those gendered crimes in particular—certainly
from the terms of perception of the public as to whether there
is fair treatment and just hearing—it is very important
that women's experiences are heard within the judiciary.
Q151 Mrs Cryer: What both of you
have said is music to my ears; I have really enjoyed listening
to your submissions. You have almost taken away everything I was
going to ask you. Just to pinpoint something, we have been hearing
a lot this afternoon about how we could encourage applicants both
from the ethnic minorities and women for judicial positions. Do
you think we should be going down the path of saying that we are
in favour of some form of positive discrimination? Not that just
because you have a brown face you are going to get an appointment
or because you are a woman you are going to get an appointment,
but because if you are from an ethnic minority your experience
of life will be greatly different to that of the white people
in this room and you would bring that experience to bear. So instead
of just looking at paper qualifications and length of service
we are sort of looking at the value-added of a brown person's
experience by way of discrimination, by way of racism and possibly
by way of immigration rules and regulations. For women similarly.
She will have possibly have experienced domestic violence or she
will have friends who have; she may well have experienced the
difficulties of bringing up a family and balancing a career. All
of these things I feel—and I hope you do—will be value-added
to what she has already got by way of paper qualifications and
length of service. Could both of you comment on that, please?
Mr Taylor: In terms of race equality
we do not favour positive discrimination. What we would say is
that what is needed is a multi-faceted approach to make progress
on this agenda. Generally opening up the appointments process
will go a long way, right up to the most senior levels. Openness
and transparency are central to building confidence and for people
coming forward and being willing to apply. We would say that there
is a need to set targets. Targets have been set in other parts
of the public sector and they have exercised a wonderful discipline
on services moving forward in terms of making progress, although
we know there is still a long way to go in services like the police
in terms of meeting those targets. However, we believe that targets
should be set and they should be matched with continuous, rigorous
monitoring and review and public reporting on achievements against
them. We believe that leadership on this agenda is crucial and
we welcome the leadership that the Government has shown in initiating
this modernisation exercise. We believe that leadership can have
a filter down effect and can result in time in a domino effect
where some people are appointed and then this gives people a genuine
sense of belief that others can follow it through. Then it leads
to people coming forward and being willing to apply. We believe
that mentoring and shadowing schemes should be put in place because
that can give people a genuine, on the job, taste of the job—what
it is like in practice—and then decide whether they want
to pursue it and whether they would have the confidence to do
so. We believe that whilst there should not be positive discrimination
there should be positive action training and the Race Relations
Act provides for positive action training under section 37 where
there is under-representation in specific professions. We believe
that there should be basic things like provision of information
to prospective candidates because there is generally a sense that
this whole area is a kind of closed shop and people do not quite
know how it operates and how it works. We know that it has gradually
and increasingly opened up in recent years but we feel that equal
access to the information about how opportunities arise and how
the process is conducted would go someway. We feel that there
is a need for a multi-faceted approach which is in part about
bringing in talent that is not there already but also bringing
on the talent that is there in the lower levels. If you look at
the figures for the judiciary, if you start at the top there are
no ethnic minority law lords, no ethnic minority Court of Appeal
judges, no ethnic minority heads of division; 0.8% ethnic minority
Circuit Judges, 0.7% ethnic minority Recorders and then as you
work your way down that gradually increases to the lower levels.
We believe that there should be measures put in place which would
enable people to rise from the lower levels up through the system
and we welcome the proposal about a judicial career path because
it may help in some ways there. We also believe that removing
the perceived signifiers of a closed shop is crucial—the
secret soundings culture—or at the very least, if they are
not removed—we believe they should be removed—they
need to be made more consistent, transparent and discloseable.
The previous witnesses talked about whether the names are known
of where soundings are taken from, but it is not disclosed; the
whole nature of it is still shrouded in a certain level of secrecy.
We believe that we cannot just wait for a trickle up effect. We
need to start to take concerted, positive action now. You cannot
just wait for the women and ethnic minorities who are at the lower
levels to spend 15 years to meet the criteria to be able to move
up. We actually think that alongside people gaining the experience
there should be these positive, pro-active systematic measures
put in place.
Q152 Chairman: Can you gain the necessary
experience if you do not take t he 15 years grind—or whatever
it may be—in gaining sufficient experience to gain the independence
that was being talked about in our previous evidence session,
independence based on knowledge of what happens in a court, what
would be tried on, what kind of judgments you are going to have
to make. I pose the question really to Dr Rake because you have
argued that the House of Lords—or the Supreme Court as it
will be—perhaps before it is changed ought to have more
women put into it quickly. I presume from that that we really
could go a long way down the age range and put people in who had
sufficient experience even to take on work at the highest levels
of judicial office.
Dr Rake: There is a very big question
here about the pace of change. We talk about the trickle up effect
and when we come to the current system it has taken us 81 years
to get from the first woman appointed to the Bar to the first
woman Law Lord. In terms of getting parity we would be expecting—purely
trickle up—to wait for another century, maybe two centuries
for that to happen. I think there is a question around public
confidence and that pace of change. Clearly there is a public
appetite for a much more rapid pace of change there. I think what
is required is a re-assessment of the skills and competencies
of those judicial posts. We have modern human resource practice
which allows us to do that. Often when people say 10 or 15 years'
experience they are using that as a shorthand for a set of skills
and competencies. What I think needs to happen is a thorough review
of what skills and competencies are really required for that post
before you use that sort of shorthand measures like they need
10 years' experience. It is really a matter of getting underneath
that and looking at what is required of that post and what skills
need to come into it. I think a term that is often banded around
is that of merit, as though that is something we all understand.
Clearly we all have very diverse views of what merit really means
and when we are using those arguments I think it is very important
to get underneath that and see what actually is merit within the
judicial process itself. Clearly proposals around career structure
would mean opening up opportunities to younger candidates for
them in order to build a career path through the judiciary and
that is something we would warmly welcome.
Q153 Chairman: To take the case of
the Supreme Court, would skills and competencies include having
experience of making the kind of decisions—or even appeal
decisions—which are then appealed on to that Supreme Court?
Dr Rake: Clearly if there is a
set of knowledge that you need to acquire and a set of experiences
you need to acquire, once you have identified that you can find
all sorts of different routes of getting it: through training,
through having a particular career path where you identify the
experience that you need to build that up. I think the problem
at the moment is that that is all left in very unspecified terms.
What that means is that with the secret sounding system as it
is working at the moment people—wittingly or not—are
saying "I do a rather good job and I think they look rather
like me" which means that you get a reproduction of the system.
For example, "I happen to be an older white man, I am doing
a rather good job so why not promote another older white man into
the post". I think what we are arguing for is really a root
and branch look at what those skills and experiences are that
are needed.
Q154 Mr Clappison: There is wide
spread perception that there are differences in people's legal
ability. You have your own definition of merit, but do you not
think it would seriously undermine public confidence—and
perhaps be an own goal from your own point of view—if there
came to be a perception that people were being appointed not on
ability but on some other criteria?
Dr Rake: I am arguing exactly
the opposite. What we need to get to is to the legal ability and
the system at the moment is not necessarily pinpointing the legal
ability. What it is pinpointing is whether someone has been around,
whether they are clubbable and all those other kind of attributes.
What we need to do is put in place a competency based system that
absolutely identifies that legal ability in a transparent, open
and fair fashion.
Mr Taylor: I think a starting
point is that the principle of appointment on merit must prevail
in all circumstances. That would be our starting point. The issue
which is then raised is: what constitutes merit in a modern 21st
century Britain? This issue of clubability and other issues much
be questioned. A key issue to be knocked on the head is that opening
up diversity will somehow simultaneously lead to diminishing quality.
On the contrary. We would argue that diversity is a dimension
of quality and merit. We would actually argue that in instances
like this quality may perhaps need to begin with an "e"
in Britain today, that you cannot do the job well unless you do
it fairly. Effectiveness and equality go hand in hand, and that
applies to the judiciary and the dispensing of justice. We would
say that there needs to be this very careful examination of the
criteria of what constitutes the person specification for being
a good judge and proven ability to dispense justice in a modern
diverse society must be part of that.
Q155 Mr Clappison: Merit is quite
different from race, gender or any other consideration such as
that. Merit is something which stands on its own. Would it not
undermine public confidence in the system if people felt that
appointments were being made not on merit but on some other criteria?
Mr Taylor: But there already is
a question about public confidence in the system. There already
is a question about legitimacy. There is a perception that the
judiciary come from a particular narrow social strata, that it
is a social elite and that contributes to perceptions of already
limited confidence and a questioning of legitimacy. We are saying
that steps can be taken which do not compromise merit in any way
but actually build on the integrity and impartiality and the current
system to further enhance confidence and legitimacy by actually
enabling the wider talent pool to flourish within the system.
Q156 Mr Clappison: But what you describe
as the social characteristics might be related to the type of
people who are going into the professions and who are actually
the most able people in those professions at the present time.
Is it not the case that there has been a huge change in the profession
and there is a huge diversity of people coming in who fully deserve
encouragement and who undoubtedly have the ability to rise to
those positions themselves? What would undermine their cause—and
I suspect yours—would be to appoint people on the basis
of gender or race or some other facet of the social characteristics
rather than on ability?
Mr Taylor: We are not arguing
or making the case for appointment of people on anything other
than merit and no changes to the appointment system should risk
undermining confidence in the independence and the high standards
of the judiciary. That is our starting point. On the contrary,
as I said diversity should further build and enhance the existing
high standards. What we need to do is to have this root and branch
review, to critically appraise what are the current modern job
requirements? What is the current appointments process? What about
it is essential? What is required for a modern 21st century Britain?
What perpetuates a closed shop? What perpetuates the perception—if
not the reality—of a judiciary that is narrow, that is seen
as not holding the confidence of all and is seen as not being
legitimate in the eyes of all? What would enhance that? They all
must be dimensions of identifying competence for dispensing justice
in a modern society.
Q157 Mr Clappison: I have to say
that although I agree with quite a lot of what you said I do not
agree with the general critique that you are making of the judiciary
on social grounds. I have to put to you that there is amongst
a very widespread section a very, very widely held view in society—and
held as well by people coming from abroad to look at our system—that
we have a system of high standards and great integrity which is
admired throughout the world.
Mr Taylor: I started by saying
that our starting point is that the principle of appointing on
merit prevails and the measures that need to be taken need to
build on and enhance the existing levels of confidence and legitimacy,
not to undermine it. There is a recognition of the integrity and
impartiality but it could be enhanced. There is significant room
for improvement.
Q158 Mr Clappison: I think you are
saying that although it would be good to see diversity we should
not do anything which jeopardises those characteristics of our
system in maintaining the high standards.
Mr Taylor: Absolutely
Dr Rake: Could I add a point here
which is this assumption that the current system is working on
merit alone. I would contest that quite strongly. I think one
of the things that has been shown by Sir Colin Campbell's Commission
is that many women and black and ethnic minority candidates with
enormous merit were coming forward and were being turned down
within the process. The notion that we have a system that is entirely
based on merit as it stands—and that we are trying to put
in a system which is not based on merit—is absolutely the
opposite way round from what we are proposing which is that the
current system is not selecting on merit and what you do need
to do is get to the legal ability and the real merit behind those
candidates.
Q159 Mr Dawson: Are you not, in fact,
suggesting a system in which the middle aged, white, middle or
upper class male from a traditional background is actually able
to demonstrate much more effectively their ability to do these
very important jobs? If that is the case, what are the criteria,
what are the knowledge, skills, abilities and experience that
you would be expecting any person to demonstrate?
Dr Rake: I do not think that is
the case. We see already that in the pool coming through there
is much more mix and diversity. Clearly what you are trying to
capture is the skills that those people are bringing into the
profession. I think that as the pool becomes more mixed and if
you have a proper process in place that does select on merit rather
than having discriminatory elements—as the current system
does—then you will see that coming through. I think there
are two challenges here. One is, in the short term, how do you
use the pool that you have more effectively? How do you draw on
the full set of talents within the pool? As I said, I think what
the Commission demonstrated was that the current system is not
drawing properly on the existing pool. The second and much bigger
challenge is how do you widen that pool and how do you bring new
candidates into it? I think there you begin to touch on issues
like needing to introduce more flexibility, for example, in the
way that the judiciary functions in order to encourage more women
to be more active in senior roles. It also raises issues of not
just passively receiving candidates but actively going out to
communities that are currently under-represented and cultivating
those candidates in the way that business has been doing for many
years. I think that is a broader set of challenges, but we are
not even at the stage where we are using the pool we have in a
non-discriminatory way. That is the first set of changes that
need to happen in the process. Then there are issues about drawing
out of a wider pool.
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