Examination of Witnesses (Questions 408
- 419)
TUESDAY 9 DECEMBER 2003
PETER HERBERT,
OBA NSUGBE
QC, AND GELAGA
KING
Chairman: Mr Herbert, on behalf of the
Society for Black Lawyers, welcome. Mr Nsugbe has been added to
our list of witnesses today and Mr King from the South-Eastern
Circuit.
Q408 Keith Vaz: Mr Herbert, why is your
organisation complaining about the modernisation of the judicial
appointments system?
Mr Herbert: Well, because 10 years
ago I wrote a paper with Tony Scrivener, which I think you have
a copy of, recommending this commission. We helped it to get into
the Labour Party Manifesto and then it dropped out of the Labour
Party Manifesto until it has come back via the back door. We gave
evidence, our predecessor, and recommended the same thing and
here we are again 10 years later, so we have been saying this
for a long time primarily for three reasons: firstly, because
you do not have a judiciary or are not likely to have a judiciary
representative of Britain unless you do something fairly radical
and the present system simply did not work; secondly, it does
not reflect the legal community where one in five people who are
coming out of law school and Bar school are from so-called minorities
now, and; thirdly, if you do not alter those two facts fundamentally,
you will not have the confidence that the courts and the judiciary
need in order to maintain all the pillars of this democracy as
being an inclusive one and not an exclusive one.
Q409 Keith Vaz: But you liked Lord Irvine
and you said that he was prepared to intervene and he was prepared
to overturn decisions where they had been made which did not promote
black and Asian people?
Mr Herbert: Yes, although "like"
is possibly a very wide verb to use.
Q410 Keith Vaz: You had praise for what
he did?
Mr Herbert: There was a role or
has been a role and where the system was imperfect, which it clearly
was, there was a need for intervention. Now, interventions, I
know because it happened in my own case, happened when I was not
getting appointed and you would go to see High Court judges and
they would intervene on your behalf and suddenly you would get
an interview, and this is how it happened. So without his intervention,
or somebody in a very senior position, the status quo would not
have shifted at all and there were several minority barristers,
to a lesser extent solicitors, who asked for their personal cases
to be addressed by him and were appointed either after meeting
him personally and having him pay personal attention to their
career progression or lack of appointment or after having had
a review conducted by himself.
Q411 Keith Vaz: But that will not happen
under the new system presumably because the Lord Chancellor would
have handed over his powers, so you cannot go and say to the individual
minister, "This has been done in an incorrect way. I think
that you should review this". This cannot happen, can it,
if you support a Judicial Appointments Commission?
Mr Herbert: Well, I think the
issue with the Judicial Appointments Commission is that it will,
generally speaking, appoint people who look like, sound like it.
I do not have a tremendous confidence unless you address the membership
of the Commission itself and make that diverse. The Civil Service
Government Legal Service is one of the least diverse parts of
government and less than 4% of all lawyers in the Government Legal
Service are from minorities, so with that as a yardstick, I believe
you need to get to the Commission first, but you do still need
a special appeal process, possibly to the Minister who can intervene
and do either three things: firstly, order that the individual
case be sent back for a review; or, secondly, intervene and make
an appointment; or, thirdly, as a piece of positive action, meet
with that person and give positive recommendations as to how their
career progression can be developed in the ensuing appointments
round.
Q412 Keith Vaz: Perhaps Mr Nsugbe can
help us as well on this point. You talk about establishment profiles,
building up the good and the great in order to be appointed to
these positions and at the moment these are all occupied by people
who are part of the establishment.
Mr Herbert: Yes.
Q413 Keith Vaz: Many would say, looking
at your career record, you are now a part-time immigration adjudicator
and you may have other appointments that we do not know about
in our profile, and your colleague sitting next to you is a Queen's
Counsel, that there is nothing wrong with the system, is there,
if it produces people like yourselves, and it is happening?
Mr Herbert: Well, with due respect,
it is not because I had to go and see my five High Court judges
and say, "I am going to take the Lord Chancellor to the tribunal
if I do not get this appointment sorted out", and they did
and I got an interview where I had never previously been interviewed
for six years. With the Employment Tribunal, and this is mirrored
by other people's experiences, you write in letters and you point
out that the criteria they set for you were not applied to other
candidates that you know of. You then get an interview, you then
get rejected and then the next year you do not even get an interview.
Well, that has happened repeatedly, so no, the system was not
working.
Q414 Keith Vaz: What about Mr Nsugbe?
You are a Queen's Counsel?
Mr Nsugbe: Yes.
Q415 Keith Vaz: Does the system not work
if it is producing people like you, high-quality people?
Mr Nsugbe: It depends what happens
next year about Queen's Counsel where there is a suggestion we
may be demoted.
Q416 Keith Vaz: Having given it to you,
they are going to take it away?
Mr Nsugbe: Well, I doubt it.
Q417 Chairman: You attach importance
to the Queen's Counsel system, do you?
Mr Nsugbe: Definitely I do and
I have said this openly. I think that where you have a system
which is, many would say, not quick enough, and I accept that,
where you have a system which is marking out able people and giving
them recognition, which I think is the key word for ethnic minorities,
I think the issue for us is recognition, you are giving them a
similar platform to others who have enjoyed it for years and years
and years and I think it is a disaster if you simply say, "Well,
we are tired of doing this and we are going to hand over to someone
else". Where, Keith, you mentioned the issue of Queen's Counsel,
I am not sure that that is something which will continue, but
I do think that there is a real issue about building up and supporting
the careers of ethnic minority lawyers.
Q418 Keith Vaz: Yes, and that is the
final question I want to ask before my colleagues want to come
in. We have had evidence from many good and great people from
an establishment that is obviously predominantly white. You are
probably the second set of black witnesses to come before this
Committee. The Lord Chancellor has made it very clear that he
wants a more diverse judiciary and this is one of the reasons
why he wants an appointments commission, but we get stuck with
this merit principle. Black and Asian people just do not reach
that merit threshold that requires them to be considered. How
are you, as people who have succeeded in the legal profession,
going to deal with this one issue that seems to be holding back
black and Asian people coming forward, this merit point?
Mr Herbert: Well, to speak plainly,
it is largely racism that holds back minorities, not merits. It
is about the lack of opportunity and there are many people, as
all of us here know, who would make excellent judges, but they
are not given the opportunity and that is directly the power is
not surrendered easily and it is dressed up as merit; it is not.
The way round it is positive action. One of the mechanisms is
to give the Judicial Appointments Commission targets to achieve
diversity as there are in the police force and everywhere else.
You work to your targets, you work to advertising, you work to
career development, you work to seminars directed at minorities
and you work to educating the people who make the appointments.
Largely what you do also is you include solicitors because now
there are 6,000 minority solicitors who make up, as solicitors
as a whole, 19% of all lawyers and you are still attracting a
very small pool. You get the best in the sense of what you have
got, not the best of what there is and that is the other mechanism
that will in due course eradicate a lot of minorities with extreme
talent and ability and that is why, from our point of view, having
been at this a long, long time, you have to do something fairly
radical. I came from Alan Beith's constituency, Widdrington, and
it is a long way from there to here, but it is not a given because
going to school there and elsewhere, you are not seen as being
judicial potential, and it is not about a problem of people not
applying; they are very, very keen to apply, but they have to
have a belief that the system will work.
Q419 Chairman: As far as I know, no white
person has ever made it from Widdrington into the senior ranks
of the legal profession.
Mr Herbert: Well, they have now.
As just one very recent example, the first two black women district
judges were appointed to the Family Division. Over 48% of children
in London are from minorities. Now, they were appointed because
they were approached and asked to apply and then appointed. Now,
that system in a sense has to be overturned, but it has to be
one that is open and transparent, encouraged and you have to be
tested by targets every year. If it is not working, you redress
it and you impart more positive action to get round that block.
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