Examination of Witnesses (Questions 300-319)
RT HON
LORD FALCONER
OF THOROTON
QC, ALEX ALLAN
AND JUDITH
SIMPSON
16 NOVEMBER 2004
Q300 Ross Cranston: What other mechanisms
are you going to put in place so that we as a political class
will not attack the Supreme Court?
Lord Falconer of Thoroton: You
mean the decisions of the Supreme Court?
Q301 Ross Cranston: Yes.
Lord Falconer of Thoroton: First
of all, the office-holder's role—
Q302 Ross Cranston: So you feel some
sort of involvement there?
Lord Falconer of Thoroton: I think
it is the appointment process, which involves the Executive; it
is the links between Parliament and the judges, not in individual
cases but in terms of being able to give evidence; it is the role
of the office-holder to protect the independence of the judiciary.
Those are the three things, I think, which will continue with
the political classes being involved enough not to attack individual
decisions.
Q303 Chairman: Before you move forward,
could I clarify the details of the process you have been describing?
We have moved from a position where a slate of names from the
Supreme Court would go to the Lord Chancellor and he would choose
from that slate to a position where—
Lord Falconer of Thoroton: There
is one name.
Q304 Chairman: —there is one name.
The commission recommends one name to the Minister but sends the
detail of the others considered. I have some difficulty in working
out what that process means: because if you look at the first
name and say, "I am not sure about that", you look at
the details of the others, which presumably have a name attached
to them, and you go back and say, "I do not like the recommendation.
I see that there are other good names on the list." What
is the difference between that and choosing between—
Lord Falconer of Thoroton: Because
you have a limited ability, you could only say, "I reject
the name" once. If they come back with the same name, you
have to accept. It seems to me it must be possible for a minister
to say, "Here are five names. We select name A." You
look at the other four names. On the face of it, if every single
one of the other four look immeasurably better than the one that
was appointed. "You have appointed somebody who has been
at the Bar for five years. Everybody speaks badly of this person.
He appears to have an appalling disciplinary record and here are
four of the finest legal brains in the history of legal brains
and you have selected A. Might you reconsider?" That would
be a perfectly legitimate thing to do.
Q305 Chairman: It is a pretty hair-brained
scenario though, is it not?
Lord Falconer of Thoroton: Unless
you have some idea of the basis upon which the choice has been
made, it is difficult to be informed about whether you accept
it or not. It picks up Ross's point though. The more you know
the more your endorsement to the appointment is a real endorsement.
What you cannot do is say, "I like the look of name C. If
you come back with C I will accept it."
Q306 Chairman: Can you not?
Lord Falconer of Thoroton: No,
because if the selection panel come back and say, "No, it
is A. We want A", then you can reject it, but then they chose
and you have to accept that name.
Q307 Ross Cranston: You remember last
time there was some disagreement between the Chairman and myself
about this?
Lord Falconer of Thoroton: I do.
Q308 Ross Cranston: I think he had some
disagreement with his party as well, but we will not go into that!
Could I take you to judicial appointments generally?
Lord Falconer of Thoroton: Yes.
Q309 Ross Cranston: Since we met I think
you have appointed Mrs Justice Gloster and also Mrs Justice Dobbs,
an appointment, in fact, widely welcomed as a commitment on your
part to diversity; and we also welcome, I think, the very detailed
paper you put out on diversity in the judiciary. But how do you
get the Judicial Appointment Commission to implement those policies
on diversity? How is it going to be done as a matter of mechanics?
Lord Falconer of Thoroton: It
is for the Judicial Appointments Commission to determine precisely
how they do it, and it will be things like much greater information
about what judicial appointments are available, discussions with
the professions about how they encourage a particular thought
of training, and entry, and encouragement of judicial appointments
so that the profession is encouraging people, discussions with
the government about sitting hours and other arrangements making
it as easy as possible to do it. It is a whole range of things,
as the judicial diversity paper says, but, perhaps more significantly,
there must be a will on the part of, first of all, the Government
before the JAC comes in and then the JAC to make a difference
in terms of the diversity of the Bench without diluting merit.
I think it was you who drew my attention to the Canadian example.
Did you have the Chief Justice of Canada giving evidence some
time ago?
Q310 Chairman: Yes.
Lord Falconer of Thoroton: I went
to Canada a few months ago, or a month or two ago, and everybody
there said to me that the Government for the last 15 or 20 years
has had a real will to diversify the Bench without diluting merit.
I was there when they swore in two new women Supreme Court justices,
making the number of Supreme Court justices four women and five
men, and that was a product over a long period of time, but they
would all say it was transforming. So it is about specific measures,
but it is also about political will, and we need to exercise that
more to show we have got that will before the Judicial Appointments
Commission comes in.
Q311 Ross Cranston: I think the Canadian
experience demonstrates that, and that is the point that Chief
Justice Beverley McLachlin has made on a number of occasions.
It is political will, which goes back to the question about appointments,
but let us leave that to one side. How do you actually ensure
that the Commission does take that political will and then implements
it? How do you do it mechanically? Do you set down guidelines
for them?
Lord Falconer of Thoroton: I think
we should set down guidelines.
Q312 Ross Cranston: Do you provide them
in some way with guidance?
Lord Falconer of Thoroton: There
was widespread agreement for this in the Select Committee in the
Lords. We need to give the Executive power to give guidelines
on diversity which the Judicial Appointments Commission is obliged
at least to have in mind. We cannot interfere with their independence
and selection, but we need to give them, without diluting the
merit principle, the ability or hopefully the obligation to consider
diversity issues as well; but if the state is keen that this should
happen, if there is that political will there in the state, one
hopes it would be reflected in the Judicial Appointments Commission
as well.
Q313 Ross Cranston: One would hope that,
but I think the Scottish example is used, is it not? They have
a judicial appointment body but I am not sure any more women have
been appointed, or any women at all have been appointed?
Lord Falconer of Thoroton: It
has not been going that long. If you go to Canada there are provincial
appointments bodies and national appointments bodies that operate
in a slightly different way. Both of them have produced more diverse
Benches.
Q314 Ross Cranston: I am underlining
your point that political will is crucial.
Lord Falconer of Thoroton: Yes.
Q315 Keith Vaz: This is to Mr Allan.
Obviously the Lord Chancellor has appointed the first black woman
to the High Court Bench, which is something that is very welcomed
on the basis of merit, but there are criticisms about the way
in which the process of the Department works as far as feedback
is concerned for those who have not managed to get a judicial
appointment. Are you satisfied that that process is working, because
I have anecdotal evidence from black and Asian people who have
applied for judicial appointment, who have been turned down, who
have then tried to use the feedback process; they get to people
in your department, who seem to be invariably on voice-mail, and
they do not get the feedback that they need to make them ready
to take up the appointments that the Lord Chancellor has just
talked about?
Mr Allan: We have certainly put
a big effort into making our whole appointments process more professional,
more open, more transparent, and, indeed, to provide the sort
of feedback that you have been describing as necessary. I am sorry
if in individual cases it has been hard to get the feedback, and
I am certainly happy to investigate any of those, but we do attach
great importance to making sure that we have genuinely improved
and made more professional the way in which judges have been recommended
for appointment.
Q316 Keith Vaz: You have just advertised
in The Times and The Guardian for a number of part-time
district judges. Have you looked at that form? Have you seen that
form yourself?
Mr Allan: I am not sure I have
seen it myself, no.
Q317 Keith Vaz: Because the form requires
people to know very senior people in the profession. If you operate
on a different level, if you are a young, black or Asian barrister
of ten years standing who wishes to get one of these appointments,
your ability to get to know the people who count to act as referees
is not very great, and that is where the disadvantage starts,
the fact that you are asked for referees who have knowledge of
people's work. The people who are applying, especially from the
ethnic minority community, simply do not have that access?
Mr Allan: That was one of the
issues covered in the consultation paper on diversity in the judiciary
which the Lord Chancellor launched a few weeks ago, very much
inviting feedback on those sorts of issues where people from black
and minority ethnic communities may feel disadvantaged. That is
very much the sort of issue we want to take on board.
Q318 Keith Vaz: Have you as the Permanent
Secretary ever attended one of these feedback sessions?
Mr Allan: A feedback session from
a—
Q319 Keith Vaz: From an applicant who
has been refused?
Mr Allan: No.
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