Examination of Witnesses (Questions 1-19)
RT HON
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
18 OCTOBER 2005
Chairman: Welcome back, Lord Chancellor
and Mr Allan, to a substantially different Committee. We look
forward to hearing from you. I think we have to declare relevant
interests before we start.
Jeremy Wright: I am a non-practising
criminal barrister.
James Brokenshire: I am a non-practising
solicitor and member of the Law Society.
David Howarth: I am a legal academic
specialising in tort law.
Keith Vaz: I am a non-practising barrister.
My wife holds a part-time judicial appointment.
Chairman: Any more? No. Mr Vaz.
Q1 Keith Vaz: Lord Chancellor, you
have set out a clear vision as to how you wish to see the judiciary
develop in the future. You talked about new types of people entering
the judicial service and indeed since your appointment as Lord
Chancellor you have appointed the first woman to sit in the House
of Lords and the first black woman High Court judge. How do you
see this vision developing? How do you think the new Judicial
Appointments Commission will take on board the points that you
have raised?
Lord Falconer of Thoroton: The
vision as far as the judiciary is concerned is of a judiciary
much more representative of the society it serves, so reflecting
much more gender and racial balance in the way that it is made
up and also other minorities such as disability or sexual orientation.
I think the critical thing in order to achieve that is to increase
the pool as much as possible from which judges are selected. I
have always made it clear that selection must be on merit. I do
not believe the problem that there is a lack of merit amongst
women, for example amongst the BME community. To achieve the vision
it is necessary to increase the pool of people who are willing
to consider themselves as judges and make applications. There
are a number of ways that that can be achieved. First of all,
it can be done by increasing the eligibility of people who can
become judges and I have done that in certain areas. For example,
people who are a member of the Institute of Legal Executives can
now apply, making it easier to work as a judge. I would be keen
to see more part-time judges. I would be keen to see judges appointed
at a younger age if that is appropriate for their particular lifestyle
and making it clear that there is a will on the part of the appointers
to appoint from a much, much wider group of people. I would very
much hope the Judicial Appointments Commission carries that forward.
Q2 Keith Vaz: You can only just set
up the vision; you cannot make the new Commission do what you
want them to do.
Lord Falconer of Thoroton: That
is correct. They are an independent body. It is for them to decide
who they select for appointment. I can give guidance in relation
to it. I can also work actively with bodies like the Law Society
or the Bar Council to encourage them to take steps to promote
people thinking about being a judge. I think one of the great
difficulties—and I have made this point before to this Committee—is
if you look at the figures of people going into the profession,
for example in terms of gender, for the last 20-odd years or more
the number of women starting at the Bar is the same as the number
of men, the number of women qualifying as solicitors is the same
as the number of men, but the numbers then go down as time goes
on. What is the method by which you can retain people in the profession
who are women or who are from black minority ethic groups so that
when the time comes they become judges? One of the things I am
quite sure of is by asking them, if they are thinking of leaving
the profession, whether it might be suitable for them to become
a part-time judge in some way or even job sharing as a judge.
That does not mean two people try the same case, it means the
workload of one judge can be dealt with by two people. We need
to be looking at things like that to encourage people to do it.
Q3 Keith Vaz: Is there not a danger
that the Department and you are running ahead of yourselves? For
example, in terms of ILEX members, you are currently consulting
on rights of audience at the same time as you are telling them
that they can become judges.
Lord Falconer of Thoroton: There
is a considerable overlap between the qualities that make it appropriate
to have rights of audience and the qualities that make it appropriate
to be a judge. I do not believe that the only people who are qualified
to be judges are those who are advocates because what we are talking
about in relation to ILEX having rights of audience is whether
they should be advocates in court. Whilst I completely accept
that if you have not been an advocate you need some experience
sitting, so that would mean fee paid work as a judge, I do not
believe that you need to be somebody whose main job is advocating
before you can become a judge. One of the things that we have
failed to pioneer adequately is making sure that more solicitors
who are not engaged in litigation or appearing in court think
about becoming fee paid judges first of all and then permanent
judges, either part-time or full-time.
Q4 Keith Vaz: When do you think you
will be making your last judicial appointment? What is the timetable?
Lord Falconer of Thoroton: I do
not know. We have appointed the chair of the Judicial Appointments
Commission, Baroness Prashar. We need to discuss with her the
time at which she starts to make selections. The Commission will
start to make appointments probably in or around April of next
year. I am not sure whether they can do every appointment at that
stage. There needs to be a gradual handover period.
Q5 Keith Vaz: In the meantime you
still make those decisions. I want to ask you about one of the
decisions that you made recently which was the subject of press
comment and it is the Chancery appointment in Wales of Wyn Williams.
Are you confident that you have appointed a person on the basis
of merit and merit alone?
Lord Falconer of Thoroton: I am
completely confident in relation to that. I deeply, deeply regret
that his name and the job to which he was appointed have become
public because the consequence is he has been the subject of unfair
press comment. The issue that I was facing at the time I made
that appointment was what would make that court, which is a specialist
court in a jurisdiction outside London, succeed and I have got
absolutely no doubt whatsoever that the appointment I made was
the right one balancing all the factors. The thing that gave rise
to the controversy was the fact that I appointed somebody to a
particular court who was not a specialist advocate in that particular
court. The fact that he was not a specialist advocate in that
area did not debar him in my view from becoming a judge in that
particular area and as events have unfolded I think I have been
proved absolutely right in that respect, and I am happy to say
that both myself and the Lord Chief Justice take the view that
he has been very successful in that job.
Q6 Keith Vaz: Have you not had any
representations from the Lord Chief Justice post your appointment
of Mr Williams that this was the wrong choice?
Lord Falconer of Thoroton: The
Lord Chief Justice has made it clear to me that he thinks it has
been a success.
Q7 Keith Vaz: The reason why you
know this particular applicant is that he attended a party in
your house and you were called to the Bar at the same time as
him in 1974, is it not?
Lord Falconer of Thoroton: We
were certainly called to the Bar in the same year. I do not remember
him being there, but I accept that he might have been there. Apparently
he did come to my house 20 years ago for a party to celebrate
the engagement of somebody that we both knew. It is also true
that I have met him from time to time, maybe three or four times
over 20 years. I should tell you that I meet very large numbers
of members of the Bar and I could not tell you who quite a lot
of them were. Meeting him four times over 20 years is not that
often.
Q8 Keith Vaz: Presumably when the
new system operates members of the Judicial Appointments Commission
would be meeting people who they subsequently appoint.
Lord Falconer of Thoroton: Of
course. It has been agreed by Parliament that there would be five
judges who sit on the Judicial Appointments Commission. They are
bound to know a number of solicitors and a number of barristers.
There will also be a solicitor and a barrister separate from the
judges. They are bound to know certain people and we think that
is a good thing, but it has got to be done on the basis of objective
merit.
Q9 Keith Vaz: As far as the transition
period is concerned, obviously to avoid anymore controversies,
even though I accept that the controversy is not of your making
or Mr Williams, are there any lessons that can be learned about
the transition period or are you just going to carry on in the
same way in which you have?
Lord Falconer of Thoroton: I think
there are a lot of lessons that can be learned. In relation to
the appointment we have been talking about, for example, we could
have had a much clearer advert in relation to it and clearer criteria.
I think there is a great deal that we can learn about appointments.
Over the two or three years that I have been doing it I am particularly
conscious of the fact that at every stage that you do anything
in relation to appointments you have got to be clear to potential
applicants and you have also got to be clear internally about
why you have done something and you have got to report it properly.
If you have got a clear and simple process where everybody knows
where they stand and you explain what you have done then you will
tend to find you have done the right thing.
Q10 Keith Vaz: And you have done
that in this case, have you?
Lord Falconer of Thoroton: I believe
so.
Q11 Chairman: You said that the press
comment was unfair. Was it unfair of the Commission for Judicial
Appointments to say, "We found that the Lord Chancellor had
acted inappropriately in relation to the appointment criteria
and procedures in deciding to appoint a candidate found by the
panel not to meet one of the criteria"?
Lord Falconer of Thoroton: I find
that completely unfair because what the Commission for Judicial
Appointments did was they said one of the criteria was knowledge
of the particular speciality and another of the criteria was making
the court work. The person I appointed was not a specialist but
plainly he could find out about the particular area of law, so
he was weak on that but very strong on another of the criteria.
For the Commission for Judicial Appointments to say it was inappropriate
was completely wrong in my view. I do not think they got it right
in relation to that and I do not think that they analysed properly
the material at all. I think they got the whole thing completely
out of perspective and produced both an inaccurate and unfairly
damaging report.
Q12 Keith Vaz: Mr Allan, when you
last came before this Committee I asked you about feedback meetings
and you will recall that at that stage you had not been to any,
but subsequently you wrote to me to tell me that you had been.
Have you looked at your DCA website recently?
Alex Allan: Yes, but I am not
sure I have looked at all of it.
Q13 Keith Vaz: I went on to it this
morning to look at judicial appointments. There are about 11 questions
that are frequently asked. Bearing in mind that there are more
posts, surely one of the most frequently asked questions is "Why
was I not appointed".
Alex Allan: I am sure if there
is demand for that we will put it up. Our frequently asked questions
are based on the questions we are asked.
Q14 Keith Vaz: So as far as you are
aware, as the Permanent Secretary, there are not many people who
ring up and say "Why didn't I get this job"?
Alex Allan: I am not sure about
the answer to that, but certainly there has not been enough to
warrant putting a question there. Following the questions you
asked at the last hearing before this Committee we have in fact
changed the procedures slightly in that we now provide written
rather than telephone feedback and we provide it to all the people
who were not selected either at the sift stage or at the subsequent
stages. We do that for those who ask for it because we have done
some work and discovered that not everybody wants feedback, so
we do not force it on people, but if they want feedback, we provide
written feedback at all stages.
Q15 Keith Vaz: The Lord Chancellor
sets out this vision of having new people in the profession, having
new types of judges, but the Department does not seem to have
caught up with him because somebody applying to become a judge
or taking a part-time appointment for the first time will probably
be turned down because they will not have passed the assessment.
They would then ring up and ask for guidance. I telephoned your
Department this morning on the number that has been advertised
and I got a very helpful person who referred me to another person
who was on an answering machine and I did not leave a message,
but maybe you can chase up the process later. Do you not think
that, with the vision that has been set up by the Lord Chancellor,
there should be more nurturing of potential judges, a longer training
system than just attending an assessment centre and writing to
people and telling them why they are not good enough?
Alex Allan: I very much agree
with that. Part of the Lord Chancellor's vision is starting much
earlier in the process to encourage people who might not have
considered a judicial career to consider a judicial career. I
think the nurturing comes right at the beginning of the process.
Yes, we do need to provide good feedback as to why people may
not have been successful.
Q16 Keith Vaz: Why have you changed
from oral feedback where people can have a decent conversation
with one of your officials and be told, "This is the wrong
appointment for you. This is more suitable to what you are going
to do. We know you want to be a judge. We know you want an appointment
of some kind. Why don't you try something else"? The Lord
Chancellor makes thousands of appointments every year. Most of
them pass your desk. Surely there is someone who can be giving
oral feedback as opposed to writing a letter because this might
put people off.
Alex Allan: We did some research
and based on that we decided that written feedback would be more
helpful in most cases simply because it can provide more detail
and people can look at it. If they want to contact the Department
to ask for further advice then we can certainly do that. The key
point was actually getting out information in a way that people
can look at and consider.
Q17 Keith Vaz: Could you write to
the Committee with your new proposals, if there are any, on how
to improve the feedback process?
Alex Allan: I did write to you
and explain some of it, but we can certainly write to the Committee
again.
Q18 Keith Vaz: That was last year.
Has it changed since last year?
Alex Allan: We have changed it.
I will write again and explain exactly what the process is.
Q19 Julie Morgan: Going back to the
diversity of the judiciary, I think it is right to say that practices
at the Bar are not very sympathetic toward women, they are not
family friendly and you have suggested some paths that might be
taken to improve the situation. Are you considering a realistic
career break scheme?
Lord Falconer of Thoroton: Yes
we are. I think what you say about career breaks is very important
because if people think that they can take a break from a career,
whether they are already a judge full-time or part-time or whether
they are a barrister or a solicitor, that really makes people
feel that they can come in and come out, which is a critical aspect
of making sure people feel they are not quite on the treadmill
but still within the pool of people who will be considered. We
are considering career breaks and we are considering it in the
context of judges being allowed career breaks.
| 
