Examination of Witnesses (Questions 1-19)
BARONESS PRASHAR,
CLARE PELHAM
AND HON
MR JUSTICE
GOLDRING
20 MARCH 2007
Chairman: Baroness Prashar, Sir John,
Clare Pelham, welcome. The fact that there are not quite so many
members here I am afraid is down to loyal duties which have taken
our members away. Are there any interests to be declared?
Keith Vaz: My wife holds
a part-time judicial appointment.
Q1 Chairman: I do not need to ask
you to provide figures about the number of staff seconded from
the Department to your staff because the Department has provided
them but I wonder if you have been recruiting new staff from outside
the Department and whether there has been any significant change
in the way you use staff which reflects the fact that you are
a new body and not just an adjunct of the DCA.
Baroness Prashar: There is some
movement and I would like to ask my Chief Executive, Clare Pelham,
to give you a detailed answer to that question.
Clare Pelham: As you will know,
the JAC was set up with DCA staff on secondment in the expectation
that the JAC would be relocating outside London in 2008 and that
was part of the explanation for the reason it was set up in that
way. Following the establishment of the Commission and discussions
with the Lord Chancellor, he took the decision in October that
the JAC would not be relocating in 2008 and would be staying in
London until at least 2010. Following that decision we were then
free to start to create our terms and conditions which are an
early priority for the coming financial year, but we did have,
as you know, 38% of our staff return to the DCA in April. Because
we did not have time, following the decision in October, to immediately
put in place our own terms and conditions what we did was recruit
staff from around Whitehall to replace those who were returning
to the DCA, with the effect that from 1 April, while we will have
65 staff on secondment from the DCA, only 39 of those will be
the ones that were, as it were, inherited. Some of those will
have come from other parts of DCA as new recruits.
Q2 Chairman: But from the DCA rather
than Whitehall generally?
Clare Pelham: We will also have
staff from wider Whitehall.
Q3 Chairman: If I can turn from that
to perhaps a much more fundamental issue, Lord Justice Auld, when
he appeared before the Committee in July 2006, said, " ...
the object of the Commission is to appoint judges on merit. It
is not to appoint a more diverse judiciary". I want to turn
in a moment to the diversity issue but first of all have you established
a notion, a definition, a concept of what "merit" constitutes?
Baroness Prashar: Indeed we have
because that was one of the first tasks we set ourselves, to determine
what makes a good judge, and we have identified a number of qualities
and abilities required. If you recall, I did send copies of that
to the Committee because we were in the process of doing so. These
were developed in consultation with key interested parties and
have been broadly welcomed. If you like, I can go through them.
There are supporting statements to this but the five are: intellectual
capacity; personal qualities; the ability to understand and deal
fairly with clients; authority and communication skills; and efficiency.
These are what we call the generic qualities which are required
and they are tweaked depending on which jurisdiction the appointments
are for.
Q4 Chairman: In an individual case
would the concept of merit extend, as some witnesses have previously
argued, to being a person who, while having those other qualities,
also added to the range of experience, knowledge and background
of the bench to which you were appointing them?
Baroness Prashar: In terms of
what is merit, that is a person who is able to do the job but
is suited to a given vacancy. This is why it is very important
that the qualities and abilities required are clearly specified
in the vacancy notice that we get, and then we will assess those
on merit in a very fair and open process.
Q5 Chairman: So would that notice
sometimes contain an indication that some particular gap in the
breadth of experience of the body to which you were appointing
needed to be filled?
Baroness Prashar: Whatever the
vacancy notice says they are looking for, for example, in some
areas if they want to appoint a judge in a family court where
you need administrative qualities or the ability to deal fairly
with clients, we would be looking for those qualities from among
the range of people who have applied.
Q6 Chairman: When you were last before
us you said you had a two-pronged approach to assist in creating
a more diverse judiciary: first, by expanding the pool of people
who are eligible to apply and, secondly, by ensuring that there
was no bias in the selection process which would disadvantage
any particular group. Is there any particular progress you want
to report to us on that?
Baroness Prashar: Yes, indeed.
We have done a great deal of work as far as outreach is concerned.
Commissioners have been involved, including myself, in a whole
range of speaking engagements and we have been talking to the
Society of Black Lawyers, the women's associations and so on,
and we have had specifically targeted events. The outreach programme
seems to be working well because the early indications are that
more people are hitting our website and there has been positive
feedback from events and a rise in applications. In terms of our
processes, you will recall that I did indicate that we were reviewing
all our processes from end to end, which we have done, and these
were introduced at the end of October/beginning of November, and,
of course, we are keeping them under close review to see how they
are working in practice.
Q7 Keith Vaz: Your strategy is based
on a long term approach. You do not expect early results on making
the judiciary more diverse?
Baroness Prashar: As you know,
we have a trilateral strategy which involves the Lord Chancellor,
the Lord Chief Justice and ourselves, and collectively we are
committed to a more diverse judiciary. Our part in that is to
encourage a wider pool of applicants and to promote diversity
through fair and open processes for the selection to judicial
office.
Q8 Keith Vaz: And that has always
been the case, has it not? I accept that there are three parts
to the solution and both the Lord Chief Justice and the Lord Chancellor
can make fine speeches, but it is for the JAC to set out a list
of criteria and set targets. Have you set any targets? Are there
any timescales or is it just warm words?
Baroness Prashar: In terms of
our response to the two strands that we are responsible for, as
I said earlier, we are making very active efforts to widen the
pool, to encourage more eligible people to apply. As you well
know, eligibility criteria are a matter for the Lord Chancellor
and we can only fish in the pool where there are eligible candidates.
Secondly, we have to make sure that our processes are such that
they do not disadvantage anybody.
Q9 Keith Vaz: I understand that,
but do you have any targets?
Baroness Prashar: If I may say
so, quotas and targets in my view are not a very useful way of
conducting our business because we are in favour of what we call
baselines, that is, comparators. Currently, we are using previous
similar exercises as comparators and working towards using the
eligible pool data from the Bar Council and the Law Society. This
is work in progress and is the best way of measuring progress.
Of course, we have to measure progress, but I am not sure setting
targets and quotas is a very useful way forward.
Q10 Keith Vaz: So if you have no
targets and you have no quotas, and you appear to have no criteria,
which is the position you were in the last time you came before
us, to increase the number of women and black and Asian people
on the bench, to make the judiciary more diverse, apart from speaking
engagements and outreach work, which is what the Lord Chancellor's
Department was doing for ten years, what have you got to show
for the work that has been done so far if you have nothing to
show at the moment apart from an increase in speaking engagements?
What is your timescale for when you can turn round to this Committee,
which is in a sense the accountable body, and say, "Look:
we have done all these things. I have gone to Manchester and I
have made a speech and I have gone elsewhere. We have had all
these different initiatives, and as a result of that we have met
our criteria"? Do we have any criteria yet?
Baroness Prashar: As I said to
you, the criteria are to increase the pool of applicants and to
measure what progress we are making on, for example, how many
people have applied and within those applications how many of
them are from minority communities, women, people with disabilities
and professional backgrounds. Then we will be analysing how many
of them got short-listed and then we will analyse how many of
them got recommended and eventually appointed. That information
will be published as part of our annual report because the annual
report is a document through which we are accountable to Parliament,
so in that sense we are measuring it and we are going to aggregate
the information provided in the annual report, and we are also
waiting to see whether we can do this on a six-monthly basis because,
if I may say so, this is a very technical area and needs to be
thought through very carefully with the comparators worked out
in association with the Bar Council, the Law Society and others.
Therefore, this is work in progress and we have made progress.
I think it would be unfair to say—
Q11 Keith Vaz: We do not know because
you are not telling us. What progress have you made? Since your
appointments how many more black and Asian people, how many more
women, have you appointed?
Baroness Prashar: The point is
that at this point in time a number—
Q12 Keith Vaz: How many?
Baroness Prashar: Let me just
give you an answer. You will recall that we inherited some competitions
from the DCA. We started some of our own and they are in progress
and it is very difficult to start giving data out when the competitions
are in progress. We can only give that information when they have
been completed, and we have every intention of making that information
available in our annual report. We cannot do it as we go along
because that would be unfair to some of the candidates if we start
giving out half-baked information in the middle of our competitions.
Q13 Mr Tyrie: I am still at a loss
to know what constitutes progress. I can understand that you want
to widen the pool of applicants. How do you measure progress in
your appointments?
Baroness Prashar: As I said earlier,
we will be measuring with each competition how many people have
applied and give a breakdown within that competition of the number
of women, minorities, people with disabilities and professional
background. Then we will monitor how many of them got short-listed
and how many of them got appointed. This information will be collected
and published in an aggregate way in the annual report. What you
have to remember is that we have only been in operation for the
last 11 months; we were here in April and we have no shadow working.
You have heard about the fact that we had relocation and we have
transitional competitions under way. We have introduced new processes.
We have defined what are merit criteria and we started our new
processes at the end of October/beginning of November. In that
sense, I think, we are making progress in terms of determining
how best to measure and make that information available, and I
have given you enough information in the way we intend to measure
each competition.
Q14 Mr Tyrie: I just want to try
and understand how you decide when you have arrived at a level
of diversity that you consider satisfactory. Let us take this
in stages. Do you think that the current level of diversity is
satisfactory?
Baroness Prashar: As you know,
we would not have been given this remit to increase the diversity
if it were generally felt that the current situation was satisfactory.
Q15 Mr Tyrie: So the answer to that
is no: it is unsatisfactory. Then we hope that as a result of
the increase in the pool from which you are appointing these people
you are then able to increase the number of appointments while
fully satisfying your five criteria; correct?
Baroness Prashar: Yes.
Q16 Mr Tyrie: At which point do you
arrive at the point at which you say, "Good; we are satisfied.
We have fulfilled our criteria"? It is back to the same question
that Keith began with: what is the benchmark against which we
are measuring your success?
Baroness Prashar: This is what
I said to you, that we are looking at comparators and benchmarking,
and the benchmarking here is that we will be looking at similar
appointments. For example, what is the eligible pool as far as
the Bar Council and the Law Society are concerned? It is not the
population at large; it is a question of how many people are eligible,
and we are looking at the eligibility pool, how many in proportion
to that are applying, but that is assuming that everybody who
is eligible wants to be a judge.
Q17 Mr Tyrie: Okay. From what I can
understand there you are saying that the rough ratios of ethnic
groups in the population, for example, are not relevant in establishing
whether you have achieved your target, and it sounds as if it
is a target. The measure is derived from the ratios of those ethnic
minorities—and I am only taking them as one of the groups
and there are other groups which you are also looking at—among
those who are already trained and theoretically eligible to apply.
Is that correct?
Baroness Prashar: Yes.
Q18 Mr Tyrie: So therefore, if, for
example, the ratio of ethnic minorities to the total population
of barristers remains wholly out of kilter with what we see in
the population as a whole, we will continue indefinitely to have
a High Court Bench that is out of kilter with the population as
a whole. Is that correct?
Baroness Prashar: Yes.
Q19 Mr Tyrie: I think I have understood
where you are getting your benchmark from, and that will be helpful
for us when you publish your annual report. Thank you.
Baroness Prashar: If I may say
so, we want to be as open as we can. What I am trying to indicate
to you is that this is work in progress. We are trying very hard
to work out the best way to give you the information and, of course,
we will make sure that what you are asking for is explained in
a way that is properly understood.
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