Supplementary written evidence submitted
by The Council of Circuit Judges in response to the Committee's
additional questions
The Committee has sought the comments of the Council
of Circuit Judges on three questions.
1. What are your views on "targets"
for numbers of women and ethnic minorities to be appointed to
the Judiciary?
The Council is opposed to the setting of targets
(or any similar device however named) whereby there is raised
an expectation or a requirement that a certain number of women
and/or racial minority candidates will be appointed. This opposition
is based upon the merit principle. It is perhaps sensible to explain
this.
There is a danger that issues will be conflated.
The Government's consultation paper emphasised the wish to achieve
an enhanced independence in the appointment of judges as a demonstrable
separation of powers. The paper also expressed the belief that
an independent commission would be "well placed " to
take forward the "opening up" of the system of appointments.
There are two entirely separate issues here. One is Constitutional
and absolute—that the independence of the judiciary be maintained
and enhanced through, inter alia, the transparency of a separate
process of appointment and the operation of the merit principle.
The other is social and political— the increasing of diversity.
This latter aspiration will, when achieved, help bolster confidence
in the judiciary and the effectiveness of its operation, provided
that this diversity is achieved through the merit principle. The
Council believes that the setting of targets is wholly incompatible
with the merit principle.
(a) Are you aware if targets currently exist,
and if so, how are they currently formulated?
The Council is not aware of any targets. However
it is believed that the Committee has received evidence to the
effect, when all other things are equal between rival candidates,
the candidates from the under represented groups have been appointed.
(b) How should they relate to the different
levels of entry into the Judiciary?
The Council is opposed to targets and so this question
is not answered directly. However behind it lies another major
obstacle to be faced by those who seek to set targets. The appointments
statistics already show that "the proportion of women lawyers
and lawyers from ethnic minority backgrounds, appointed remains
higher than the respective proportions eligible to apply"
(Judicial Appointments 5th Annual Report Page 4). If targets are
to be set, to what are they to be related? To the proportions
of the sexual balance and of ethnic groups in the whole population?
To the proportion who qualify as either Solicitors or Barristers?
(In due course this would lead to very large "over representation"
because of the changing gender and ethnic make up of those entering
the professions). To those who qualify as solicitors and barristers
and are in the right age and experience group and who apply? If
it is the latter then this proportion is already being over achieved.
(c) How would one ensure that the existence
of targets did not devalue the status of future appointees?
This is the whole nub of the question. Were there
to be targets then those appointments made to meet them would
be liable to be impeached with the accusation of tokenism; that
the appointments were not made on merit but to meet a theoretical,
politically inspired quota. This position would be bad for the
individuals and bad for the Judiciary as a whole. The paramount
principle of merit, which sustains judicial independence would
be undermined. It is suspected that targets would not command
the general confidence of the Bench, Bar or Solicitors.
2. What efforts are currently made to engage
with under represented groups and how do you feel these could
be improved upon?
The Department runs a work shadowing scheme the details
of which may be found in the Judicial Appointments 5th Annual
Report 2002—03. The Committee also heard evidence from the
Council of Circuit Judges and the Association of District Judges
of the more informal work that is conducted. The Lord Chancellor
and his senior officials consistently emphasise the wish to achieve
a more diverse judiciary and encourage candidates to come forward.
There is a balance to be struck in involving the judiciary in
"talent spotting". Praise and encouragement of the right
candidates of either sex and all ethnic backgrounds is a part
of being a judge. However to single out individuals for targeting
or to encourage candidates too intensively could be seen as upsetting
the level playing field.
It seems to the Council that the key to the problem
is to get the right people to apply. It is now some seven or eight
years since the practice for the selection of judges changed from
"observe and select" to open application and competition.
While the former method allowed the Lord Chancellor to offer an
appointment to those he considered to be the best in both professions
(and the accolade involved often meant that candidates, who now
do not consider applying and surrendering their income and freedom,
could be persuaded to join the Bench) the current system can now
only capture the best of those who apply. This change therefore
has ended the ability of the Lord Chancellor to select the best
candidates amongst whom would be a proportion of currently non
applying female and ethic minority professionals. This problem
may be partially off set by talent spotting—but this must
be achieved sensitively and sensibly (see above).
Accordingly the new Judicial Appointments Commission
must seek ways to attract candidates from the underrepresented
groups. The larger the pool of candidates the more appointments
will be made. The Department with the full (and indeed the instigating)
support of the Council and Association has been working over several
years on a scheme to allow part time working. It is hoped that
a submission to the Lord Chancellor is not too far off. The enlargement
of the pool of candidates must be achieved while maintaining the
merit principle and without any of the changes or flexibility
introduced in the terms and conditions of the appointment reflecting
adversely upon the justice system or those who use it. In plain
terms we must beware that, for instance, family friendly policies
do not lead to delays in cases and to a two tier judiciary. The
business of judging cannot be tidily put to one side at 1630 or
1700—work in the evening and at weekends both on cases and
on a wide range of ancillary matters is necessary at times. This
requirement increases with the length and complexity of cases
and with the increasing burden of administrative duties the higher
the ladder is climbed.
It is possible that more encouragement by conferences
and workshops may bring forward candidates but care must be taken
not raise unreasonable and unsustainable hopes and ambitions.
A plethora of unsuitable candidates would have an adverse effect
on the object that all are attempting to achieve.
3. Following the evidence session, District
Judge Cochrane and others objected to the statistics referred
to by the Society of Black Lawyers, and stated that they would
have appreciated a right of reply, could you expand on this?
I am not aware that the Council raised any objection.
The Association will make their own comment. The Council is happy
for this matter to proceed on the following basis, namely that
the Council is sure that the Committee would not wish to base
any recommendation or comment upon any statistic given in evidence,
from whatever source, without there being verification of it from
the published statistics or by the statistical branch of the Department.
Sean Lyons
The Council of Circuit Judges
December 2003
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