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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1554-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
JUDICIAL APPOINTMENTS COMMISSION
Tuesday 18 July 2006 BARONESS PRASHAR CBE, RT HON LORD JUSTICE AULD and SARA NATHAN Evidence heard in Public Questions 1 - 68
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 18 July 2006 Members present Mr Alan Beith, in the Chair David Howarth Mrs Siān C James Julie Morgan Mr Andrew Tyrie Dr Alan Whitehead Jeremy Wright Keith Vaz
________________ Witnesses: Baroness Prashar CBE, Chair, Rt Hon Lord Justice Auld, Vice-Chairman, and Sara Nathan, Lay Member, Judicial Appointments Commission, gave evidence.
Chairman: Baroness Prashar, Lord Justice Auld and Sara Nathan, we are very pleased to see you here. We were very much in favour of your being created in the first place and we reported on the Scottish Commission before you were even appointed. We are glad to have you here. We have a duty to declare any interests that we might have around the table that are relevant. Jeremy Wright: I am a non-practising criminal law barrister. David Howarth: I am an academic lawyer and my wife is a magistrate. Chairman: Thank you very much. In that case we will begin the questioning with Mr Howarth. Q1 David Howarth: In one of our previous reports we said that the Commission should define "merits" for judicial appointment and I just wonder what steps the Commission has taken to define that or any other ways in which candidates know exactly what the criteria are which might help them to apply or not to apply? Baroness Prashar: This is one of the first tasks we have undertaken, to define "merit" because, as you know, one of our statutory duties has been to appoint on merit. We have been working over the last three months on defining the qualities that make a good judge. We have more or less completed this work and we are now in the process of talking to interested parties to get their observations. I am afraid I cannot share with you what the qualities are because, as I say, we have not quite yet shared it with the interested parties, but I can assure you that this is one of the first tasks we undertook because merit is our bedrock and it is very important. I can share with you that we are of the view that there are certain generic qualities which make a good judge. Then, of course, these will have to be adjusted according to which actual jurisdiction you are looking at but they will be core qualities. Once we have consulted the immediate interested parties, these will be very transparent and open to everybody. One thing I can say also is that the current what is called "framework of competences" has too many competences and one of the things we are hearing from applicants is that it was rather cumbersome so we have tried to reduce the number of qualities and make them far more succinct. Q2 David Howarth: Of course my next question was going to be what can you share with us? Is there any general information you can share with us at this stage about how you went about it and what your thinking is? For example, there are different qualities required presumably for different parts of the judicial hierarchy? Trial judges require different qualities from appellant judges, for example. Baroness Prashar: Indeed. Q3 David Howarth: Is that part of your thinking? Baroness Prashar: Very much so. The way we have gone about this is we set up working parties which were looking at selection processes because, as we said in our written evidence, we have approached our work by reviewing and revising it. The working parties, both the one looking at appointments to High Court and above and the one looking at below the High Court, worked very hard collectively to discuss amongst themselves what the qualities required are. During the course of the last three months myself and my fellow Commissioners have been doing a lot of induction and going round talking to judges and in the course of these discussions we have actually asked them what do they think makes a good judge. We have actually had that input informally, I should say. I do want to emphasise your point, that we are working on what are called generic qualities and these will then be adjusted according to which jurisdiction they apply, whether they apply to tribunals, to district courts, circuit judges or trial judges, and so on. Q4 David Howarth: A slightly different point but related point. We sometimes hear talk of moving to younger judges being appointed. What is your view of that and how would it relate perhaps to the idea of moving towards a career judiciary in the German or French mode? Baroness Prashar: I am sure my colleagues will want to comment on that but my view at the moment is that we do not particularly want to move towards a so-called career judiciary. What we do want is people at a younger age to start thinking of a judicial career because if you are in your mid 30s, at the moment, all the research shows that people when they leave law school either think of becoming a solicitor or a barrister or partner and so on Nobody thinks of a judicial career. As part of our way of increasing the pool of applicants we are making every effort to ensure that people start thinking of a judicial career at an earlier stage, which is slightly different to having a career judiciary. I do not know, Robin, whether you want to add something to that? Lord Justice Auld: We are constrained at various levels by the statutory eligibility requirements so we are not masters of the future in that field, although I think we might hope to be consulted about it if there were to be consideration of any changes. One does not, I think, in whatever walk of life, on leaving university or law school think immediately about becoming a judge. It is not something that has particular attractions to young men and women. It comes to them later on in life. At the moment, we have a halfway house on this, I think. At the lower judicial levels, part time and full time, people are becoming judges in their mid 30s, and at the level of circuit judge, early 40s and High Court judge 45 to 50, so there is a progression here already which I think will be increased if we take advantage of the use of more part-time appointments, which has got to be good for the system and good for the potential appointees for each to take the measure of the other. Within our limits we are on the way but whether you extend it below the level of mid 30s immediately, I am not sure. We are not, as I said, in control of that. Sara Nathan: We are looking at outreach of various sorts towards different groups that are unrepresented. Our outreach at the moment is not targeted at the young but because it is targeted at those who might be thinking about it, it is possibly moving to a slightly younger age. Also some of it is electronic/internet based and maybe that encourages the younger as well. Q5 Mr Tyrie: A moment ago you said that you had not got round yet to producing your definition of merit or the qualities a judge must have in order to satisfy the merit condition. Do you not think three months should be long enough to work out what constitutes a good judge? Baroness Prashar: Absolutely and, as I said, we have done that and we are in the process of consulting people at this stage. Once we have consulted the interested parties we shall be ready to actually make them public, but I cannot do that today. We have spent the last three months doing precisely that. Chairman: Would we not be a good group of people to consult? Q6 Mr Tyrie: Yes, that is exactly my question. I am surprised if you are consulting that you do not think that Parliament might be somewhere to consult. Baroness Prashar: Absolutely. The thing is there is a two-stage observation to be had. Of course, we will definitely consult you because my view is that in terms of accountability the relationship with your Committee is going to be an important part of that and we shall make sure that you see them. Q7 Mr Tyrie: When are you going to be able to give us this completion of the first stage of consultation because I think what you have said is you are going to have a two-stage consultation, one with this group of interested parties, and I would be interested to see the list of those --- Baroness Prashar: Of course. Q8 Mr Tyrie: ---And then secondly with the wider public, and Parliament will be let in on the show at that point; is that right? Baroness Prashar: When you say Parliament it will be the Select Committee. I think the Act says that we should be defining what is merit, and we will take soundings and of course we will make sure that you are consulted. I will certainly let you have a list of people that are going to be consulted. Q9 Mr Tyrie: And the timing for these two stages? Baroness Prashar: I am hoping that the first stage will be completed by the end of this month and thereafter we will be writing to Members. Lord Justice Auld: If I could add something about that. The qualities of a judge certainly from our point of view, as relative newcomers to the field, cannot be cast in stone. It has got to be an evolving process and no doubt after a year or two, with continuing review and consultation, we shall be tinkering with it and consulting on that, too. One has to embark upon what is essentially and largely a philosophical exercise as to what are the magic qualities for a judge. There are bound to be many, many views on that and, as you can imagine, we have had a good deal of debate about it, but I hope we are near at least a first draft, maybe a second draft, and there will be other drafts, no doubt ,in the years to come. Q10 Mr Tyrie: I understand the point about the evolutionary nature of it; I was expressing surprise at the beginning that you had not arrived at an initial first stab at it that you could share with us. Baroness Prashar: We have. Q11 Mr Tyrie: I have one other question in relation to your statutory remit. I think it is very well-trammelled territory that selection based solely on merit can form a tension with your second guiding principle, which is diversity. Are you going to discuss that tension in this initial paper or proposal which you are going to come forward with for consultation? Baroness Prashar: I think people normally when they talk about merit and diversity they think that the two concepts are incompatible. The view that we have taken is that merit and diversity are not necessarily incompatible. If you appoint people on merit, the important thing is to make sure that you are reaching out to those who are eligible to apply and, secondly, there is no bias in your selection processes which disadvantages any particular group. Of course, we have had a debate about how we are going to ensure that our assessment processes are such that there is no bias, and we will be looking at issues like the training of those who are involved in selection. So we have taken all the steps that we think are necessary and we will have quite a targeted strategy to ensure that we widen the pool and make sure that all those that are eligible and want to be judicial office holders are able to apply and are assessed fairly. Q12 Mr Tyrie: Are you going to publish that material? Baroness Prashar: Yes. Q13 Mr Tyrie: Presumably that is going to be worked up into some sort of guidelines? Baroness Prashar: Indeed. Once we have completed our deliberations everything we do will be very open because we want to be a very open organisation and very transparent in whatever we do. I think you will agree with me that we are only 100 days old and we have taken our initial task very, very seriously and have deliberated long and hard and we have made enormous progress. All I can share with you this afternoon is some of our emerging thinking and the guiding principles. I am sure Sara, who has been leading the work on outreach and increasing the pool of applicants, will want to add something to that. Sara Nathan: So far, looking at what we are going to be doing with diversity and what areas we are targeting, we have come up with the thought that initially at any rate there are probably four areas. Chairman: We are going to come on to consider diversity. I think Mr Tyrie was questioning whether there was a tension and you sought to address that point. Q14 Mr Tyrie: And that has been answered. You are saying there is a tension but not an incompatibility, and certainly there remains a tension, and that you are going to make sure that you do not bias against any particular group. I hope you can give the reassurance that any bias will also not be against white, middle-aged males. Baroness Prashar: Absolutely. David Howarth: Perhaps you should declare an interest! Mr Tyrie: I have no pretensions to judicial appointment, I assure you, and I am prepared to call myself middle-aged as well! Q15 David Howarth: Coming back to a group of people you might be thinking about as a group to approach for a judicial career and that is government lawyers, lawyers in government, prosecutors and so on, in other countries there is an interchange between prosecutors and judges, especially in France, but even in the US if you look at the careers of some US judges. Are you worried about the implications for the appearance of independence of taking on more lawyers with a governmental background into the judiciary? Baroness Prashar: I think that as part of our widening of the pool of applicants that we would want to encourage academics and government lawyers, of course, but in terms of independence that will be assessed as part of the selection criteria. I think it would be unfair to say that there would be any perception of lack of independence because independence is independence of mind, and if you want to widen the pool it is important that we make sure that all those who are able to apply are considered fairly. I do not know whether you want to say anything in response to that. Lord Justice Auld: We do not have here the same possibility that pertains in many civil law jurisdictions, people passing back and forwards from a prosecutorial function to judge and back. Once you become a judge you stay a judge under our system at the moment, and I see no problem at all in government lawyers giving up a 20 or 25-year career in practice as a government lawyer and then enjoying the luxury of judicial independence. One of the great joys I felt when I first sat as a lawyer after a long time as a street fighter at the Bar was the disinterest in the way in which the case ended. It was wonderful not to worry about whether I was going to win or not. I think that is the reaction of many people. If you have people coming from a walk of life where they have done nothing but defend, say in public, high-profile cases, that is their trade, why should public lawyers be any more disqualified than people from other particular areas of interest when they come to consider judicial office? Chairman: Turning to diversity issues and Mrs Morgan? Q16 Julie Morgan: What actual steps do you plan to take to make the pool wider and more diverse? What are you actually doing? Sara Nathan: We are going to be focusing on four areas of diversity: women; black and minority ethnic; where people come from (a continuation of what we were discussing a moment ago) so the fields in which they have practised or been employed; and disability, as a first start. We are going to be continuing on the work that has been done hitherto, so we are going to be doing quite a lot of outreach to groups to people who have expressed an interest. We are continuing with the newsletter. Usha has been going round an enormous amount of different groups and speaking to them and we are going to be working with a series of partners, organisations which we think are particularly active in the areas in which we would hope to encourage interest, and working with them so that people at least know there is a possibility of a judicial career, that they know how to apply, that they have more ideas of what they might be doing. Then there are other things that I think are already done, but not by the Judicial Appointments Commission, on work shadowing and so on, and that has been worked up through a tripartite group between the Judicial Appointments Commission, the DCA and the Chief Justice's office, all these places, where there is a tripartite move towards making people more likely to apply than they have been hitherto. Q17 Julie Morgan: How will you actually measure what you have achieved? Will you be monitoring this as you go along? Sara Nathan: We will be monitoring. There is baseline monitoring that has already taken place. I think it would be wrong to say that we are expecting a revolution because this is likely to be a slow evolutionary change. Yes, we will be monitoring it at various levels, at application, and then all the way through the processes as well. It is quite difficult because we cannot monitor the pool. It is quite difficult but we can monitor from application onwards. Baroness Prashar: I think it is imperative that we monitor because it is one of our statutory duties to ensure that we increase the pool of applicants, and therefore we need ensure at the first stage how many are applying, how many are short-listed, how many are interviewed, and how many are actually appointed but, going back to an earlier point, if you are going to make sure that the selection process is fair, it is very important that we monitor at each stage. The difficulty is getting the baseline. At the moment the statistics we have are purely by judicial office holders. There are no figures for tribunals or magistrates because we do not deal with them, but it is something that we are working hard again on developing. Q18 Julie Morgan: So what would your aim be? Sara Nathan: If that is do we have a quota; the answer is no. Baroness Prashar: Our aim really, if you take strictly what the legislation says, is that we want to increase the pool of applicants to make sure it is more diverse but, ultimately, obviously it is important to ensure the outcome is also as diverse. It is no good saying we are getting the applicants but they are not being appointed. If that were to happen something would be drastically wrong. So it is the outcomes. In terms of revolution or evolution, it is true that if you are looking at High Court and above, the eligible pool is quite limited and it is very important that we increase that pool by making sure that people are entering the judiciary at lower courts and working their way up, so we obviously need to make sure that we are taking steps for that to happen. Q19 Julie Morgan: So you will feel that you have achieved your aims if you see a more representative judiciary but you cannot specify what that would be? Baroness Prashar: At this stage it is very difficult because we are very much working on measurements and we would set ourselves objectives and targets obviously at some stage, but this would have to be once you have got a base measurement and we need to know what the figures are so that we can realistically predict what progress we want to make year in year out. 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 just 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: You 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, his 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, the 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? Q40 Keith Vaz: I think there should be a strategy. The purpose of the Select Committee is for us to ask witnesses questions. Politicians have their own views and we would be here all night if we started telling you what they were. Baroness Prashar: If I may say so, I think from my point of view, we very much welcome the questions because that is the relationship I would want to have with the Committee in terms of accountability. However, I think you have to understand that in terms of our objective we do want something that is sustainable and rigorous in what we do and we want the right kind of outcomes. We are all committed to diversity. That is our strategy objective. As a society we are committed to diversity. The one thing I will say is that the benchmarks are a guide in terms of measuring what we are doing, but if you are really talking about positive discrimination, we know that is unlawful under the law anyway and that is not what we are doing talking about. As I said earlier, in my book there is no tension between merit and diversity. Q41 Keith Vaz: But benchmarks are not unlawful? Baroness Prashar: No, they are not. Q42 Mr Tyrie: It might be helpful not now but if you could come back to us in writing with a considered view on this benchmarking issue because there have clearly been some differences expressed by the witnesses this afternoon. I just wanted to ask Lord Justice Auld a question. I thought he made a very interesting response to the question what would you do if the outcome does not reflect the pool of applicants, to which he gave three possible reasons. Since presumably the pool of applicants by category will be published and the outcomes will be published and we will be able to see whether there is a broad or "rough", I think was the word used by Ms Nathan, equivalence between these, we will be able to see whether there is. If there is not, will the Commission undertake to explain which of these three, in their view, is the cause? Lord Justice Auld: If there is not a happy outcome that there is some reflection in the appointments of a wider range of candidature, we would have to look first, as I indicated, at whether we are getting through the system in those coming up to appointable age a sufficiency of range of appointees of quality. That is not something over which we have any immediate control, but it is something over which I would hope we would have a powerful influence in making representations to the DCA and other people responsible. If that is not a problem, then we have to look at our own way of approach. Is there some subconscious bias in the way in which we are approaching it? We can only do our best with that. We may have to come to the conclusion that although those appointed do not reflect closely or exactly those who were considering applications, that that is life. Q43 Mr Tyrie: You are repeating your previous answer, which was a full one and I think a very useful one. My question was: if and when you arrive at the point of making that judgment because there is a difference between outcome and the pool of applicants, will you put into the public domain your view as to its cause? Lord Justice Auld: I should think we would be doing it in a piecemeal way if and when we see things perhaps not going as we would hope them to. Baroness Prashar: If I may say so, we will be publishing an Annual Report each year which will be laid before Parliament and we will articulate the reasons we think because there may be things outwith our remit that need to be a done in terms of what the DCA need to do. If there are barriers over which we have no control we will be highlighting those. In terms of having the on-going dialogue because it is a joint commitment - the Lord Chancellor, the Lord Chief Justice and we are committed to that - and therefore I think the Annual Report will be in the public domain. Q44 Jeremy Wright: Can I come to another aspect of the definition of merit which you are working on which you have indicated to us. Presumably it is right to say that the definition of merit will include an aspect of legal experience and more general experience. In the case of the Lord Chancellor's remarks about legal executives being encouraged to apply for judicial office, do you have any concerns as a Commission that legal executives may not have sufficient legal experience or indeed legal training? If you do, is the answer to that going to be, "Well, we can plug that gap with some form of additional training or additional professional learning which will enable them to meet the required standard"? Baroness Prashar: Changing the legislative criteria is very much for the Lord Chancellor and, as you know, last year he did make a statement to that effect. Of course, they are waiting for legislative time to bring about that change, and as and when that happens and legal executives become eligible to apply they will be treated like any other candidate. Q45 Jeremy Wright: But in treating them as any other candidate I am assuming that one of the criteria that you would apply is, "Do you have enough experience, do you have enough legal training, to be able to deal with a judicial appointment?". We all know that legal executives do not have a similar degree of formal legal training at the beginning of their careers to that of solicitors and barristers. Presumably this must cause you some concern because you will want to apply that merit criterion to all of the applicants who apply for judicial office. Is that something that is worrying you at this stage? Are you talking to the Lord Chancellor about that aspect of it, because clearly he has indicated the Government's intention to widen the field of potential applicants to include legal executives? Baroness Prashar: It will depend on how we assess the legal knowledge and the experience, and the other thing which I think we would want to encourage is people doing fee-paid work and expanding that area of experience. I know that Robin has some views on this. Lord Justice Auld: If the statutory rules of eligibility are changed then the Judicial Studies Board, which is there for this purpose, will have to do what it does for other people working in unfamiliar areas of the law who are considering application to be recorders: it will have to train them, and it will undertake that function and we shall have to assess the products of their training in the same way as we would any other newcomer to a judicial life. Q46 Jeremy Wright: But you are confident, are you, at this stage, or as confident as you can be, that the Judicial Studies Board would be able to do that? Lord Justice Auld: It is a very efficient, and I think most people would regard as a very successful, body, yes. Q47 Jeremy Wright: The other question I want to ask you is about the other end of the scale. We know that part of the problem with the diversity of the judiciary is not so much at the lower levels of the judiciary but very much at the higher levels, particularly at the High Court level. It is possible to argue, I can appreciate, that these things take time and if there is more diversity at the lower levels of the judiciary eventually there will be greater diversity at the higher levels. Notwithstanding that argument, are there issues that you as a Commission would wish to address yourselves or would be happy for the Government to address about the way in which High Court practice as a judge may deter particularly women from engaging in that lifestyle? I am thinking in particular of the peripatetic nature of a High Court judge on circuit, travelling around and living in lodgings as they do now. Is that something that worries you? It is not directly within your remit, I appreciate, but it would obviously have an impact on it. Do you have conversations with the Lord Chancellor about that? Baroness Prashar: This, if I may say, very much relates to my previous answer. If there are barriers which affect more women applying to be High Court judges, which is something we cannot do anything about, we will certainly be having the conversation and drawing this to the attention of the Lord Chancellor. This is why there is a tripartite agreement, because in a way we have seen what we can do and what other people can do and I do feel very strongly that all the barriers which inhibit the diversity of the judiciary will have to be tackled and we will want to articulate these and draw them to the attention of the Lord Chancellor. They will be done formally, informally if necessary, and then we will report. Q48 Jeremy Wright: Do you share the view that the particular example I have given is a problem that needs to be addressed? Baroness Prashar: This is something I am beginning to hear because one of the first speaking engagements was with women judges and that is an issue which has been raised. Ms Nathan: It is not always just an issue for women, of course. There are men with caring responsibilities, including High Court judges, and some of them have found it very difficult. Q49 Jeremy Wright: Certainly, and I hear this from members of my former profession who are male and female who are deterred from applying for judicial office because they do not like the lifestyle. I accept that, but it is obviously something that you may wish to consider and I simply wondered whether you were considering it and, if you are, what the next step would be. Baroness Prashar: The other point, which is something which we did last week, was an initiative with regard to solicitors, where Harriet Harman and myself and Kevin Martin, the President of the Law Society, addressed a group of solicitors to encourage them to apply for judicial office because in a way there is a myth that unless you have advocacy experience you cannot be a judge. In other words, we are beginning to take steps, but it is true that we are outlining these and we are beginning to have conversations and we will be taking steps to do that, but we need to begin to gather evidence. Q50 Keith Vaz: Can I declare my interest? I am a non-practising barrister and my wife holds a part-time judicial appointment. One of the reasons why the Lord Chancellor gave up the power to appoint judges was that he wanted to make sure that those who appointed judges were more representative of society and, looking at the three of you here today, highly distinguished members of society, I think we would probably call you all representatives of the great and good - a former first Commissioner for Civil Servants, a Court of Appeal judge, a former editor of ----- Ms Nathan: I am just a jobbing journalist. Q51 Keith Vaz: Well, jobbing journalist but Editor of Radio 5 Live, former Editor of Channel Four News. You have been around the quango system, Ms Nathan. The fact is, how are you going to keep in touch with what the public really feel about judges? Baroness Prashar: How we are going to keep in touch is precisely by our outreach, and if you look at my diary it is absolutely full of speaking engagements. If I may say so, you may say we are part of the great and good but we are very much connected with our communities and it seems to me that we keep our ear to the ground. If I may say so, the lay members of the Commission are extremely well qualified to do that so I have no fears about us getting out of touch with public opinion. Q52 Keith Vaz: You are going to pop down the Red Lion and have a pint? Baroness Prashar: Absolutely. Q53 Keith Vaz: Excellent. So you think you will be more accountable than the system we have had before? You welcome the fact that the Lord Chancellor has given up his powers? Baroness Prashar: I thought you welcomed it too. Q54 Keith Vaz: We will see your results before ----- Baroness Prashar: And, of course, Parliament welcomes it too, and the fact that we applied to do this job is a sign that we all welcomed it as well. Our accountability and our independence is something we cherish and we as an organisation want to run ourselves in a way that we are accountable and we are open and, as I keep saying, we want a relationship with your Committee, we want to have a report and we will have a website where everything is open, whatever speeches I have made, whatever we do, what events we are going to have. It is a very open organisation. Q55 Keith Vaz: And, of course, the processes that you put in place hopefully will be better than the processes that were being adopted by the previous regime. Baroness Prashar: Again, before you came I did say that we have started by reviewing, revising and putting new processes in place because we are developing a new process for the High Court and the Bar and we are reviewing the processes which are currently in place. It would be fair to say that two areas of criticism are that there are too many competences and the application form is too cumbersome and we are taking steps to deal with that and are working very hard to make sure we refine the processes and I hope they will be shorter and better. Q56 Keith Vaz: What lessons do you think have been learned by the disaster of the recent applications to be an immigration judge at Stoke which required the Lord Chancellor to intervene and suspend the whole process? You presumably have looked at the file and know what went wrong. Baroness Prashar: The only thing I can say is that it is a question of quality assurance and one advantage is that the Commissioners are actively involved with the teams who are running competitions and the engagement and the direction is very much to make sure that we have a new ethos in the organisation. Q57 Keith Vaz: So you are aware of what went wrong? Baroness Prashar: And we very much want to make sure that we ourselves quality assure our processes because, if I may say so, I and my Commissioners take very seriously what I call the reputation of the JAC because as an organisation we are committed to making sure that we do the job well. Q58 Keith Vaz: The Lord Chancellor said, "The way the process had gone I would not be satisfied that a fair selection was being done, by which I mean I was advised that there were inconsistencies in the way that people were being assessed". Basically, he slammed his own officials. Baroness Prashar: That is what he said. Q59 Keith Vaz: So why have you taken on 81 members of his staff? Baroness Prashar: I think you will appreciate that you cannot blame all 81 staff ----- Q60 Keith Vaz: How many members of staff were so criticised by the Lord Chancellor? Baroness Prashar: Let me just answer the question first of all. You have to remember that we did not have a scheduled running Commission, so we have got the organisation to set up, there are transitional arrangements, there are current competitions which cannot wait, so there are things which have to be done. Let me tell you that in my experience, because I myself have been working very closely with the staff, along with my Commissioners, the quality of the staff that we have inherited is of high calibre and I have every confidence that they will deliver, but we have a long term strategy which is that over a period of time we will appoint our own staff. Q61 Keith Vaz: How many members of staff do you have at the moment? Baroness Prashar: There are 105 full time equivalents. Q62 Keith Vaz: According to the Permanent Secretary, who took a very long time to reply to this Committee but managed to get his letter to us today, or I think it is in the post, as the saying goes, out of 105 for a new young organisation that seeks to be independent, to forge your own way on this issue, 81 are secondees from an organisation which the Lord Chancellor himself in some cases has absolutely no confidence in. Baroness Prashar: The Lord Chancellor said what he did but I can tell you that we, the Commissioners, have full confidence in and are working very closely with the staff, and I have no doubt that we will be able to develop the work. Q63 Keith Vaz: But he is a clever man, is he not? Baroness Prashar: Let me just tell you this. You were telling me earlier, "In 100 days what have you achieved?". If we have to start recruiting our own staff at the same time there will be a complete hold. We have taken on the ongoing business and we have to develop new processes. Let me just tell you that, having been the first Civil Service Commissioner, I do know that the civil servants work to any administration with equal commitment and loyalty and, given the sort of direction they are getting from the Commissioners, I have no doubt that they will respond. Q64 Keith Vaz: I accept that, and there have been other transitional arrangements and I accept you know about civil servants because, of course, you appointed all the senior civil servants in your last post, but the fact is that the Lord Chancellor has been very clever. He has decided that in respect of the appointments in Stoke the process was awful, he slammed his officials, and now he has sent them over to you, 81 out of 105. You are not the only organisation that has ever had to start from scratch. There have been other organisations that have done this. When are you going to appoint your own staff with advertisements so that you are satisfied of their competences rather than taking leftovers from the Lord Chancellor? Baroness Prashar: I think it would be unfair to say that we have taken leftovers from the Lord Chancellor. In any organisation mistakes occur and, as I say, I am not going to comment on that because that was not my business, but one thing I will say is that we have a long term strategy to appoint our staff as we go on, but there is another issue of relocation and we cannot do that until that issue is settled. Q65 Keith Vaz: Is there a Commissioner specifically responsible for personnel and staffing matters or is that devolved below Commissioner level? Baroness Prashar: I have an excellent Chief Executive, Clare Pelham, who is sitting behind me, and I work very closely with her. I am spending a lot of time closely with the senior team to make sure that our processes are right and are being implemented in the right sort of way. Q66 Chairman: Who is deciding this relocation issue? Baroness Prashar: We are currently in discussion with the DCA on this because there was a commitment to relocate us. We are currently in discussion with the Lord Chancellor and a business case is being developed and once that is settled we will be in a position to make some firm decisions. Q67 Keith Vaz: The other issue is feedback, which I have often questioned Alex Allan about and never got satisfactory answers. I realise you are a young organisation and you have just started, et cetera, but you are appointing judges so that is a pretty important thing to do. What processes have you got in place for dealing with feedback, people who are dissatisfied with what you have done and they need to be told why, because the anecdotal evidence from the DCA is that the feedback process simply does not work. People ring, ask for feedback. They do not get the feedback. The Permanent Secretary has never been to a feedback session. What process are you putting in place to make sure that you have a better system? Baroness Prashar: We have heard all the criticisms that you are making and again we will be looking at this because at the moment we have had no closure on any of the competitions that we have launched, and part of our thinking is how we are going to give feedback, at what stage and in what form. This is all under review. We are listening very carefully to what the issues are. Q68 Chairman: Of course, it follows from that that we will be looking forward to seeing you again before very long when I am sure you will have a lot more to tell us. Perhaps this is a baptism of fire but, as you indicated yourself, it really is important that some of these important and difficult issues are hammered out effectively between Parliament and those who have taken on what we regard as a very important responsibility and we want to see it exercised as effectively as possible. We are very grateful for your time this afternoon and we look forward both to what you are going to tell us in the meantime and to our next session with you. Baroness Prashar: I am very grateful on behalf of my colleagues for this early opportunity to have this dialogue with you and we look forward to our continuing dialogue. Chairman: Thank you.
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