Examination of Witnesses (Questions 20-39)
BARONESS PRASHAR
CBE, RT HON
LORD JUSTICE
AULD AND
SARA NATHAN
18 JULY 2006
Q20 Julie Morgan: Do you anticipate
that this will be a slow process?
Baroness Prashar: We very much
anticipate there to be a change and, if I may say so, from the
discussions I have had with a whole range of organisations, ranging
from women judges to the Society of Black Lawyers or black solicitors,
I think they already feel that because it is an independent Commission
they can relate to it. I think it is very important that we do
that outreach, we are seen to be open, that our processes are
clear, and that is why we are working very hard to make sure that
there is clarity, that our processes are not daunting, and the
sense I get, this is again from the first three months, is that
people will come forward.
Q21 Jeremy Wright: I just wanted
to explore a little bit further the difference in what you were
saying there between achieving equality of opportunity for judicial
applicants and achieving a different outcome in terms of the application
process. I understood you to say earlier on, particularly when
you were answering questions from Mr Tyrie, that what your intention
was was to widen the pool of judicial applicants, to bring in
people who would not ordinarily think about applying for judicial
office into that pool, but not to allow the system to operate
on any other basis than pure merit to decide who from that pool
becomes a judge or holds a judicial appointment. I just wanted
to be clear about that because I thought I detected in what you
were saying that you wanted to ensure also that the outcome, in
other words the judicial appointments that were made, also reflected
diversity. I just wanted to be clear about that because you will
appreciate there is a difference between saying let us make sure
there is a wide pool, a diverse pool and anyone who could possibly
wish to become a judge has the opportunity to become so, but then
would it be appropriate (or would it not) to step back from that
process to ensure it operates fairly but that the outcome of who
gets a judicial office might not necessarily reflect diversity
because it is simply done on merit. Is there a dichotomy there?
Baroness Prashar: Let me be very
clear what I am saying. Our first objective is inevitably to make
sure that we widen the pool of applicants. Once we have widened
the pool of applicants we have to make sure they are appointed
on merit but that there is no bias in our processes that disadvantages
any particular group, be that minorities, women, whatever. In
other words, merit is our benchmark and I do not see a tension
between merit and diversity. If you are saying to me will we in
any way eschew the merit criterion to skew the outcome? No, merit
is merit. The point really is we have to make sure that people
who apply are not in any way disadvantaged by the selection process.
If we find that the outcomes are not reflecting the number of
applicants because that is the measurement, we would then begin
to look at what is going wrong and take the necessary steps. I
really do not think there is any contradiction in what I am saying.
Q22 Jeremy Wright: I suppose my point
was why should there be anything going wrong if, in a sense, you
were to have achieved stage one and widened the pool of applicants
but the same number of people from an ethnic minority background
or who were female became judicial appointments, that would not
necessarily demonstrate, would it, (or would it) that the system
was not working properly? There still might be the possibility
that you widen the pool but the percentage in terms of final judicial
applicants was exactly the same. That would not demonstrate failure
for the organisation, would it?
Baroness Prashar: But then we
will look at the reasons why that is happening. In my book it
is very important to analyse why we are not getting the outcome
that we think we should get and what is going wrong. It is only
through constant monitoring and analysing that we will actually
take steps.
Q23 Chairman: Some people argue that
it is a merit to add to the bench your background if that is different
from the current predominant make-up. There is actually a merit
argument in appointing someone who, other things being equal,
adds to the diversity or reduces the extent to which the bench
is not representative of society as a whole. Do you see that as
a merit?
Baroness Prashar: What we see
as a merit is an understanding of the community within which you
are operating.
Q24 Chairman: That is a different
concept. Anyone can have that, whatever their background.
Baroness Prashar: In other words,
that is very important because if you just say just because you
happen to be, let us say, of Asian origin but you do not fulfil
the other criteria, that is not appointing on merit, and therefore
in the generic qualities to be a judge, the part of that is understanding
the community in which you are operating is very important.
Q25 Mr Tyrie: I think I have understood
you to say in response to Jeremy Wright that if, having expanded
the pool, you are still getting a similar proportion of appointments
from different groups that you might consider this to be an outcome
other than the one that you think you should get. I think that
was the phrase you used and I wrote it down. What is that outcome
that you think you should get?
Baroness Prashar: Let me repeat
what I am saying because I think we need to be very clear. We
are increasing the pool of applicants and making sure that it
is a diverse pool. The candidates will be assessed on merit, which
we all agree. If we find that the increased pool does not actually
give us the desired outcome, does not increase the diversity of
the applicants who are successful, that really means that we ask
some questions as to why that is the case. It seems to me to be
logical to do that.
Q26 Mr Tyrie: What is the desired
outcome? The same question I have just asked.
Baroness Prashar: The desired
outcome is that the judiciary becomes more diverse and therefore
to me the logic is if you are getting a diverse range of people
applying it means people will come through the process and therefore
there will be people from more diverse backgrounds, be that Afro-Caribbeans,
Asians, government lawyers, academics, women and so on.
Q27 Mr Tyrie: More diverse up to
what point?
Baroness Prashar: I am not in
the business of setting up quotas, if that is what you are really
looking at.
Q28 Mr Tyrie: I am examining what
you are telling me.
Baroness Prashar: I am not looking
at quotas because it will be what will be the eligible pool and
therefore who is applying because not everybody who is eligible
to apply will want to be a judge.
Q29 Mr Tyrie: We have discussed the
pool. It is this outcome I am asking you questions about. I am
trying to clarify what the end point is. What is your end, desired
outcome? To say it is more of something is, if I may say so, fairly
fluffy, to say the least.
Baroness Prashar: As I said to
you earlier, this is my emerging thinking. I am not willing at
this stage to give you figures or numbers, if that is what you
are after, because we have really not got to that stage yet and
we need to work stage-by-stage. I am sharing with you the approach
that we are adopting and three months into our young life I am
not going to give you figures and numbers because we have not
even really got the baseline.
Q30 Mr Tyrie: I have not asked you
for numbers. I have just asked you for an explanation of your
thinking about the phrase the "outcome that you think you
should get", your desired outcome. To be quite frank, I do
not feel I have yet had much of an answer.
Sara Nathan: There is an eligible
pool. From the eligible pool we would hope that the applicants
would be somewhat more diverse than they are at the moment, using
the four criteria I mentioned earlier. If having achieved that,
and that in itself would be a bit of a move, we find that the
processes that we have instituted do not deliver to us an outcome
that more or less reflects not society as a whole (because we
cannot do much about that) but the range across the people who
have applied, then we will have to look at the processes and see
if there is something distorting in our processes that means that
some group is grossly over or under-represented. That does not
mean that each individual appointment will not be made on merit.
Q31 Mr Tyrie: If I can clarify, your
desired outcome is therefore an outcome in terms of appointment
that broadly reflects the ratios of the applicants?
Sara Nathan: If it was very different
from that then we would have to examine our processes to see if
they were correct.
Q32 Mr Tyrie: Have I got that roughly
right?
Sara Nathan: Roughly but to go
back a bit, it would be great if society and indeed the eligible
pool were reflected. We cannot do much about that. All we can
do is to take from the application process and make sure that
is fair so that we come out, to some extent, not representative,
that is not the right word, but reflecting the pool that went
in.
Mr Tyrie: Thank you.
Q33 Keith Vaz: This all sounds rather
confused. You are getting very defensive when Mr Tyrie is merely
trying to ask you questions on benchmarks. We have a situation
where the Lord Chancellor has made it very clear he wants more
diversity and what does he do about it? He goes out and he appoints
women to the Court of Appeal and into the House of Lords; he makes
positive decisions to do this. It sounds to me that you do not
really have any strategy. You like the word "diversity".
You want to make the judiciary more diverse. It is like: "It
is a hot day today and we all need more ice creams, but we do
not know how many." What we are concerned about is that the
positive steps that have been taken so far by the Lord Chancellor
are repeated by your Committee when you deal with making the judiciary
more diverse, but it sounds to me as though that is a strategy
that needs to be worked on.
Baroness Prashar: I think you
are not putting a true reflection on what we are really saying
because we are definitely building on the Lord Chancellor's strategy
and, as we said earlier, we have a trilateral arrangement with
the Lord Chancellor. We have identified what we need to do, what
the Lord Chancellor needs to do, and what the Lord Chief Justice
needs to do. If you look at that strategy there are two things
which we are looking at. One is we are taking steps to increase
the pool of applicants. I think that has to be the first step.
The second part of our strategy is to ensure that there is no
bias in our selection processes which disadvantages any group.
That is clearly stated in the tripartite agreement that we have
with the Lord Chancellor. The question asked was about the outcome,
and of course we can increase the pool but the outcome may not
increase the diversity. The point I am making is that if the outcome
is not right we will be looking at reasons why. Is it because
something is wrong with our process or is it that not very many
people are coming forward? If not, are there other barriers that
are outwith our remit?
Q34 Keith Vaz: We do understand that
and no-one is questioning your credentials. Nobody in this room
has more understanding of diversity than yourself with all the
various posts you have held in your distinguished life, but the
point is if you do not have benchmarks you do not know whether
your outcomes are successful. Just saying the word "more"
means nothing. We have no Asian High Court judges. What does that
mean? I will appoint one, you will appoint one, therefore we have
more, therefore we have been successful. You cannot undertake
a strategy on these woolly terms, whereas the Lord Chancellor
has been very specific and, using the power of appointment, he
has appointed and he has made the judiciary more diverse. You
cannot reach a situation where when you make your appointments,
you find you are doing worse than you were doing before and then
you investigate why you are doing worse. Once you have appointed
a judge that is it. Until they are removed by an Act of Parliament
or they go mad or they resign, they are there, so investigating
a process that may be flawed sounds to me like, dare I say it,
shutting the stable door after the horse has bolted.
Baroness Prashar: May I say that
I would beg to disagree with you on this because I do not think
that our strategy is woolly. Before you came I did clarify that
we are only 100 days old and we are deliberating hard on developing
a strategy. If I may say so, we do not believe in quick fixes
because I am very interested in making some structural changes
which will be sustainable. The Judicial Appointments Commission
has to appoint on merit and increase the pool and therefore we
are looking for sustainable change, and that is why we are deliberating.
It is far from being woolly. It is very clear in terms of what
it wants to achieve. Of course, you can look at the numbers but
I did say earlier that we would be looking at measurements after
we know what the baseline is. At the moment we know what the figures
are but we do not quite know what the eligible pool of applicants
is and how many can apply and so on and so forth, and that measurement
is an essential part of it. All this consideration will go into
giving you benchmarks. I do not think it is a question of setting
up quotas, but the benchmarks will be developed based on the facts—
Q35 Keith Vaz: I understand that.
When will the benchmarks be ready?
Lord Justice Auld: I think it
is silly to be talking about benchmarks, if I may say so.
Q36 Keith Vaz: The Chairman just
has.
Lord Justice Auld: The object
of the Commission is to appoint judges on merit. It is not to
appoint a more diverse judiciary. Diversity is a means to securing
the appointment of more judges on merit. If you draw from a wider
pool of people, you have a better choice, and you are more likely
to improve rather than diminish the quality of the pool of judicial
appointments. If we, as we set out with our definition of merits,
find that perhaps although we are getting a widening pool of applicants
it is not being reflected in the range of judicial appointments,
there are three possibilities. One is that we are not attracting
a sufficiently wide number of people from whom to acquire the
best quality. There are two reasons possibly for that. Firstly,
because we are not doing it properly ourselves or because people
who should be qualifying for a judicial career through their working
life are not coming up through the system. We are dependent very
much on those who will reach the minimum statutory eligibility
as they come towards the age of judicial appointment. That is
one possibility. The other possibility is that notwithstanding
that we have acquired the widest possible pool of potential appointees
there is some flaw in our own approach, some bias which would
operate against one or other of the people who would be coming
to us for appointment. The third is there could be nothing wrong
with it. It may be an unhappy consequence that despite the best
efforts of the Bar and solicitors and other professions to bring
people up through the system, despite our best efforts to widen
the pool of those applicants for appointment, that it is not reflected,
either accurately or even moderately, in the range of judicial
appointments. It is silly to be talking now about benchmarks of
judicial appointments when we have no idea what we can possibly
aim at.
Q37 Keith Vaz: I am sorry, that is
what the Chairman just said. In the end—
Lord Justice Auld: That is what
I am telling you and I am certain it was the thrust of what both
the Baroness was saying and my colleague. We are focusing—
Q38 Keith Vaz: —I think the
record will show—
Lord Justice Auld: —we are
focusing insofar as we can on drawing in the best applicants from
the widest possible range. There is nothing else we can do.
Q39 Keith Vaz: We do understand that
but that is "apple pie and ice cream". Everyone wants
that; nobody disagrees with that, but what the Baroness said was
it is a young organisation, you will have to sit down and look
at the strategy and at the end of the day there will be benchmarks.
I think that is what the record will show. You think that is silly,
do you?
Lord Justice Auld: What do you
say the benchmark should be for us on appointing on merit, 100
days into the job?
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