Examination of Witnesses (Questions 180
- 199)
TUESDAY 18 NOVEMBER 2003
RT HON
LADY JUSTICE
HALE DBE
Q180 Ross Cranston: If it were a
narrower committee—
Lady Justice Hale: If it were
a narrower committee it would be all the more important to have
a shortlist of at least three. I would prefer to attack it from
the other end.
Q181 Keith Vaz: Can I turn now to
judicial appointments. In your 10th Pilgrim Fathers' Lecture you
say, "I prefer to regard the present judiciary as disadvantaged.
They mean well. Few if any of its members are actively misogynist
or racist: but they have a lamentable lack of experience of having
female or ethnic minority colleagues of equal status." Bearing
in mind we are not going to see massive changes in the short term,
how are we going to ensure that the members of the judiciary get
the kind of experience that you want them to have until those
other appointments are made? Should they be sent away on an away-day
with a lot of black and Asian people? Should they be invited to
go to some social functions? How are we going to give them this
experience before the appointments system changes?
Lady Justice Hale: They already
do have, of course, a certain amount of diversity training but
that does not really address the point that I was making at all.
The point that I was making is that you tend to regard other sorts
of people as different, in ways that they are not, unless you
are used to having them about. There is no substitute for having
a reasonable diversity of colleagues and then to begin to take
one another for granted and learn how to behave not only with
colleagues like that but with other people. I am not sure that
I would accept that it should take so very long to increase the
diversity on the Bench, particularly the gender diversity. I do
see that there are more specific difficulties with ethnic minority
diversity because of the number of ethnic minorities.
Q182 Keith Vaz: It was remiss of
me not to add my congratulations to that of the Chairman. You
are, of course, a role model. You are the first woman to sit in
the House of Lords. Are you conscious of the responsibility that
you have in what you say and what you do that women all over the
country and all over the world will be looking to you as the person
who actually made it.
Lady Justice Hale: I am very conscious
of the weight of that responsibility and my main concern is to
discharge the function sufficiently effectively and appropriately
as to make it a matter of course that there will soon be another
woman. I do not want to pull up the drawbridge is what I am saying.
Q183 Keith Vaz: But do you feel a
little disappointed that you are going to be the last under the
old system rather than the first under the new system? I have
put this to other witnesses who have appeared before the Committee.
We have this interim period where the Lord Chancellor has said
that he wants to change the system but we do not have a new system
in place. You have been appointed by a mythical figure—the
white man in black tights—you are his last appointment as
far as we know. Do you feel your legitimacy is affected by that
or are you quite happy to have taken the appointment on the basis
that there is going to be another body coming which is perhaps
more representative?
Lady Justice Hale: I do not think
it would have made a lot of sense to say no just because the system
could be improved, would it? There are two constituencies in a
sense that are expecting something of me. One of them is women.
The other are the non-standard candidates for appointment. The
other thing you will have picked up from what I have been saying
is that I am a supporter of confronting the merit principle head
on and saying that there are many more very able, capable, independently
minded people of integrity who could make a contribution as judges
than the ones who are currently regarded as the obvious candidates
under the present system. I would put amongst those the sort of
practically minded academic lawyer and public sector participator
that I was. I know that the academics are expecting just as much
from me as the women are.
Q184 Keith Vaz: My point is that
the present system which people say is not perfect has produced
you; you have broken the glass ceiling. Given that circumstance
how can another system be a better system?
Lady Justice Hale: Is this the
eccentric appointments point?
Q185 Keith Vaz: No. It is whatever
is decided after the consultation period. It cannot produce a
better result than you, can it?
Lady Justice Hale: I bet it could.
You cannot expect me to agree with that. In any event, it does
seem to me that a different system stands a better chance of producing
more people. It is an indictment that it has taken so long.
Q186 Keith Vaz: Indeed, and in the
submission that your organisation has made there is an emphasis
on the need for people to apply for posts when they become vacant.
When you were appointed were you asked to apply? Did you get a
telephone call? Did you get a letter? How is it done under the
present system?
Lady Justice Hale: As you probably
know, until quite recently there were no applications for the
High Court and above. The last position for which I did apply
was the Law Commission. However, I, at least, have experience
of having applied for jobs and have gone through an ordinary selection
process.
Q187 Keith Vaz: In terms of the appointments
that are made at the moment, people do not have to apply; they
are invited to apply. Are you saying you favour applications?
Lady Justice Hale: I favour applications
if only because it is transparent, it can—as we know in
other walks of life—throw up candidates that people have
not thought of. I do challenge this assumption that the senior
judiciary know all the appointable people.
Q188 Keith Vaz: Is there anything
wrong with headhunters going round and pointing out suitable candidates?
Lady Justice Hale: Just like Sir
Colin Campbell—whose views on most issues I share—in
universities when a senior appointment is vacant there is an advertisement
but there is also thought given as to who might suitably fill
the post. People are approached and may be invited to apply. If
they are invited to apply they are then treated just like everybody
else who has applied and subjected to the same assessment process.
Q189 Keith Vaz: It is the transparency
of the present system that worries you the most. You want an open
system where people can put in applications, put down their referees.
You want it to be like any other application for any other job.
Lady Justice Hale: Any other—dare
I say it—top job. Yes. I would also like the system to look
very carefully at what is the pool of people in which we are trawling?
What do we regard as the qualifications and experience necessary
for the job? I challenge—I would do, would I not?—the
assumption that 20 years as an advocate is the only qualification
that is appropriate for appointment to the higher judiciary. I
cannot be the only academic, the only person with my sort of background
who is fitted for appointment.[3]
Q190 Chairman: Can you just clarify
the point about a single entry point for judges where the Appointments
Commission would decide at what level it was suitable to place
someone in the system? That is a rather different concept from
open applications for vacancies arising at different levels. Could
you say a little about it and whether it has your full support?
Lady Justice Hale: It was, of
course, at the initial appointment level rather than at the question
of promotions which is separate. The idea was that one should
apply to become a judge.
Q191 Chairman: At any time? Any day
of the week?
Lady Justice Hale: This is what
happens at the moment. There are separate competitions. There
are some competitions for a vacancy if, for example, there is
a vacancy for a mercantile judge in the north east or whatever.
However, mostly there is a general competition announced for judges
at a particular level, either part-time or full-time, and applications
are invited. One could just as well have a notion that there is
a general competition announced for judicial appointments. People
apply; they can express a preference for which point they think
they are best suited for, but they have put in an application
for appointment as a judge. Then the Commission can consider whether
it should be looking at this person in this light or that light
or the other light. That, in a sense would be much less invidious
for the applicant than putting in an application saying they only
want to be a district judge, for example. People could be picked
out who rather undervalued their qualities and other people might
be offered things that they did not so much like the look of.
Q192 Keith Vaz: In that famous lecture
you gave—which is going to be quoted by everyone I should
imagine—you talked of the need for some affirmative action
to get rid of these disadvantages. That is quite an important
and sweeping statement. What do you mean by "affirmative
action"?
Lady Justice Hale: I do not mean
positive discrimination. Let us be absolutely plain, I do not
mean that. I am as firm as everybody else is that we have to maintain
a high quality judiciary which scores highly on the important
qualities of independence, integrity, intelligence and the like.
However, one can achieve a great deal—as Canada has shown—by
producing a system which is open to applications in a much greater
way than our present system is and by encouraging people to apply
who might not have thought of applying. For example, I would not
have thought of applying—had I had to apply, because I came
in before there were any applications for the High Court—unless
somebody had asked if I had thought of applying. There must be
a lot of ways in which you can encourage non-standard people to
consider themselves possible candidates and therefore make the
application.
Q193 Keith Vaz: It is just the use
of the words "affirmative action".
Lady Justice Hale: That is affirmative
action.
Q194 Keith Vaz: If you compare it
to the American experience it means something quite different.
Affirmative action means that you not just encourage people to
apply—which is what everyone wants to do; we are all in
favour of diversity, we all love black people and Asian people
and we want to see more of them appointed and more women as well—you
actually reserve places. You say that this judiciary is simply
not acceptable and we must do something about it. Would you go
that far?
Lady Justice Hale: No, I certainly
would not. I would call that positive discrimination. I quoted
the provisions in the Canadian charter which I was contrasting.
You can do things to redress disadvantage which is actually helping
people to qualify and helping them to recognise the qualities
they have and making the system better able to recognise the qualities
they have got. That is not positive discrimination.
Q195 Keith Vaz: You did say you had
not applied for a position since you got onto the Law Commission.
In terms of your present appointment were you telephoned by the
Lord Chancellor and told you were going to go into the House of
Lords? How is this done, this great mysterious way of appointment?
Did he invite you to tea? How are you told?
Lady Justice Hale: I could tell
you all sorts of lovely stories. As far as the High Court is concerned—I
am not sure whether it still happens—you are invited to
see the Lord Chancellor. I was invited to see the Lord Chancellor
when I was still a law commissioner and I assumed it was about
something to do with law reform. It did not occur to me that it
was about a judicial appointment until I got to the Pass Office
and when I said I was here to see the Lord Chancellor they said,
"Oh, that's about a judicial appointment, isn't it?"
Q196 Chairman: So you heard it first
from the Pass Office.
Lady Justice Hale: Yes. They knew
what it was about when I did not. So far as the Court of Appeal
is concerned you get a letter from Number 10.
Q197 Keith Vaz: Just offering it
to you.
Lady Justice Hale: It says: "A
vacancy will shortly arise and I would like to recommend your
name to Her Majesty but before doing so I would like to be satisfied
that that would be acceptable to you" or words to that effect.
Q198 Keith Vaz: And your most recent
appointment?
Lady Justice Hale: The same. Out
of the blue.
Q199 Ross Cranston: Anne Cryer and
I attended the lecture that you chaired with the Chief Justice
of Canada, Beverley McLachlin. The thing that struck me about
what she said—which is a point which you pick up in your
lecture—was that it was conscious efforts by government
and I do not know whether she said it there or somewhere else
but certainly she said that it was very much the efforts of the
present Prime Minister, Chretien, when he was Justice Minister
25 years ago. It sort of links in with what Keith Vaz has been
asking you. There was a conscious effort there to try to widen
the pool and to get more people on the bench and that has been
extremely successful. The lesson I draw from that is that political
action can actually produce changes. I wonder if you draw the
same conclusion.
Lady Justice Hale: It was a political
commitment, but the action was probably through the Appointment
Commission route. It seems to me here that the idea of having
a Judicial Appointments Commission with a link to a department
which has accountability to Parliament can devise strategies for
improving matters.
3 Note by witness: Professor Jack Beatson was
appointed a High Court judge earlier this year. Back
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