Examination of Witnesses (Questions 120-139)
CLARE PELHAM,
PROFESSOR DAME
HAZEL GENN
DBE AND SARA
NATHAN
20 JUNE 2007
Q120 Mr Tyrie: In the recently completed
High Court competition what was the process you employed to select
the 25 successful candidates who have now been recommended to
the Lord Chancellor?
Sara Nathan: We advertised and
did a certain amount of outreach and publicity. We had a new application
pack so that when candidates got in touch with us they were sent
a new application pack and new application forms, very much reduced
in size from previous forms. We then looked at eligibility, because
obviously sometimes when people apply they are not actually eligible.
More or less everybody was; I think there were two who were not.
The forms came back. We then looked at the referees, and added
to that are the Commission-nominated referees. So the candidates
could nominate between three and six references. We then added
another—it varies in number depending upon who they were,
because what we did was we gave them a list of those people we
would consult. So if you were an academic then you would like
to talk to their head of department. If they were solicitors,
you might go to the managing solicitor or to the head of Chambers.
So it was obvious to the candidates the sorts of people we were
likely to be approaching. We eventually got all the references
back. Those were done again in a much less box-ticking way, if
you like. Some of them in fact were done orally for the first
time. I think 75 of our referees were done orally, they did the
reference over the phone, it was sent back to them to agree and
then it came back. Then we short-listed, and then we interviewed
just over 50 people. It was a structured discussion, but I always
think of it as an interview; it is not that different. Very interestingly,
none of the people who took part in that had anything other than
pretty good words about it. It was a very rigorous and quite extensive
process. Then after that we went through making our assessments.
The vacancy notices, although the overall thing was 25, were broken
down. The Family Court wanted four and there were different divisions,
different specialities. They had to be meritorious, but they also
had to be of the right calibre for the right position. There was
no point in us trying to appoint a Family judge, obviously, to
a Queen's Bench position. That was it really, and then after the
interview we made our selection.
Q121 Mr Tyrie: How many people applied
for the High Court Bench this time around?
Professor Dame Hazel Genn: 144
altogether.
Q122 Mr Tyrie: How many of those
applications were made by a candidate who is a member of what
one might describe as an under-represented group?
Professor Dame Hazel Genn: Well,
it depends what you define as an "under-represented group".
If you are talking about the target groups that we have identified,
which is women, black and minority ethnic applicants, those with
disabilities, there were 21 women who applied, three people who
identified themselves as from a black or minority ethnic group
(because, of course, we are dependent upon how people identified
themselves), eight people who identified themselves as having
some type of disability, and seven were solicitors and 94 barristers.
We also have another category, which is salaried judicial post-holders,
of which there were 43, but that overlaps with backgrounds as
solicitor or barrister. So just about 15% of applications were
from women and 85% from men.
Sara Nathan: The other thing,
of course, is that some of them overlap. You could have an application
from a female minority ethnic solicitor—in fact there were
applications from those. In such a small competition with such
small numbers it does not tell you as much as maybe a larger exercise
would really.
Professor Dame Hazel Genn: If
I could just add that the number of applications was larger than
the previous competition run by the DCA. They had 128 applications,
we had 144. We had slightly more women than last time and the
ethnic background is a little bit different; it is about the same.
Q123 Mr Tyrie: May I ask, through
Mr Vaz, if the Committee could send you a letter with a number
of factual questions which perhaps could amplify some of the replies
you have been giving, so that we can get this information into
the public domain?
Professor Dame Hazel Genn: I think
these have been put on the website this morning, and the other
thing that I could add—
Q124 Mr Tyrie: You will understand
that I have not had a chance to look at your website this morning.
Professor Dame Hazel Genn: But
they have been sent to you in advance of today.
Clare Pelham: It was very short
notice, but we were anxious to provide them to the Committee as
soon as they were available and the Chairman wrote yesterday.
We are very conscious that you have not had a huge amount of time
to digest them.
Mr Tyrie: Again, if I may say so, if
you want to interact helpfully with the Select Committee it might
be a good idea to provide this information a little earlier. I
certainly have not seen it and I do not know whether it has been—
Keith Vaz: It has just been given to
me.
Q125 Mr Tyrie: This is clearly not
a very satisfactory arrangement. Can I ask about the QCs? I think
everyone agrees that QCs are a very fine body of men and women,
but they are predominantly white and male. As a result, do you
attempt to focus your recruitment at all on lawyers who are not
QCs?
Sara Nathan: In fact we did not
on the High Court form have anything about QCs at all. You did
not have to say. One of the other things you did not have to say
is what your income is, which is something which had been on the
earlier form. We did not ask whether you were a QC because it
seemed to us that that might disadvantage people and put off people
who were not, who were solicitors or academic lawyers, who might
not be. It is a non-statutory criterion to be a QC, so we did
not put it on the form.
Mr Tyrie: Thank you very much.
Q126 Julie Morgan: Good afternoon.
What will be the procedure for the District Judge (Magistrates'
Court) competition, which I understand is starting this month,
and how will that be different from the High Court competition?
Professor Dame Hazel Genn: As
you know, we have been reviewing all of our processes and there
is a number of changes we have made. We have changed our selection
criteria, we have changed the application forms, and I have actually
brought with me a copy which it might be useful for you to have,
which is a copy of the current District Judge (Magistrates' Court)
application form, and I have marked up for you those questions
which were on previous forms which no longer appear on the forms.
Sara mentioned just now that we have removed questions which (a)
were not helpful for us in terms of selection, were not part of
our selection criteria, and (b) questions which we felt might
be off-putting to people who made applications. For example, with
the previous DJ(MC) form, I think probably the second question
on the form was to list your decorations, income, various other
questions which we felt could create a sense that "I am not
the sort of person who should be applying." So we have removed
those kinds of aspects from the application form. We have simplified
the application form and we have made it more transparent. In
using our new criteria we given people a much easier opportunity
to say how they meet the criteria. So basically the application
form itself is much more straightforward. The other important
innovation from our point of view is to introduce the use of qualifying
tests as the principal sifting mechanism and it has been the Commission's
policy to introduce qualifying tests as a more objective, fairer
form of sifting mechanism than was used previously, which was
the application form together with references. We recognise that
there are people who do not necessarily present themselves or
sell themselves particularly well on the application form. We
were also aware that there were people who were employing consultants
to help them complete the application form and people were concerned
as to whether or not there was too much emphasis put on references.
So basically the introduction of qualifying tests we believe will
be a useful objective and valid system for sifting out, because
of course DJ(MC) is a very large selection exercise and a lot
of decisions are made at that stage.
Q127 Julie Morgan: What sorts of
tests are they?
Professor Dame Hazel Genn: The
kinds of tests we have been introducing build on the experience
they have had over years at assessment centres and user qualifying
tests. What we are visualising is two kinds of tests: first of
all, tests which test a person's knowledge of basic legal principles,
and then, secondly, something which tests aptitude for the job.
That is in a sense an almost real-time case study so that you
are having to deal with papers, analyse the issues which you need
to analyse and make a decision under time pressure. Again, we
feel this provides a better test. It is quite challenging, but
it is a better test of a person's aptitude than simply reading
application forms. We have used this recently for the Care Standards
Tribunal for the sifting process and have had very good feedback
from candidates. They find it challenging but they think it is
a fair way of testing the extent to which they are likely to meet
the selection criteria.
Q128 Julie Morgan: So they actually
come in and do this?
Professor Dame Hazel Genn: Yes,
they do, under test conditions. It is like exam conditions. They
come in and they take the test and we provide them with information
in advance to help them to prepare so that they know what to expect,
because that is terribly important. You do not want to take people
by surprise, but you give them a fair chance to prepare, to know
what to expect, and then they come in in batches and they take
the test. As I say, we have done this recently with the Care Standards
Tribunal and it worked very well.
Q129 Julie Morgan: Are you able yet
to assess how successful that sort of test is?
Professor Dame Hazel Genn: The
measures we have got at the moment are first of all the feedback
that we have had from applicants, which has been quite positive.
Secondly, one of the things I have personally been pleased with,
because I have always been worried about the extent to which tests
which are supposed to be testing a kind of generic aptitude privileges
people who have experience of a particular jurisdiction, and what
we found with the care standards exercise was that those candidates
who had had judicial experience outside of that jurisdiction actually
did as well, and I think actually did rather better than the people
from within the jurisdiction. So we had succeeded in creating
tests which test generic aptitude rather than just, "Do you
know about that particular jurisdiction?" and that is what
we are about. What you want to do is to increase diversity to
bring in people. You need to have the selection processes which
allow people of talent to demonstrate their aptitude, even though
they may not have specific knowledge of a particular jurisdiction,
and I think for me that is something which is very important.
Sara Nathan: We take that on at
the next stage in fact at this sort of level, because what you
have post-sift as part of the face to face selection, if you like,
is the use of the Assessment Centre and that involves role-play.
In the bowels of Steel House they have set up kind of quasi courtrooms
and we have people in there who are judicial members and judicial
helpers, legal helpers, who devise scenarios where people are
tested on their judgecraft. So they have not a legal problem but
they have people playing various members of a court who might,
I don't know, talk on a mobile, put their feet up, be obstreperous,
be rude, be racist, all sorts of things that you would hope somebody
coming through this process would be able to deal with. It is
not a matter of jurisdiction, but this is about courtcraft, and
that is also a very useful method of selection.
Professor Dame Hazel Genn: So,
to summarise, the process is defined tests and people who get
through the qualifying tests will go to the Assessment Centre.
At the Assessment Centre they will undertake role-play, they will
be interviewed, we will have references available and at the end
of that process we will make our decision based on all of those
pieces of information. So we make a sort of holistic decision
based on all the information we have before us. No one piece of
evidence is key.
Clare Pelham: If I may just amplify
slightly, I think we have given you an aide-memoire which sets
this out by category of judicial appointment because it does differ
slightly depending upon whether you are applying for a fee-paid
or entry level appointment, which is where the role-play comes
into play, or whether you are applying for a salaried appointment,
where it is a qualifying test followed by an interview.
Julie Morgan: Thank you.
Q130 Keith Vaz: How many complaints
have you received about your process?
Professor Dame Hazel Genn: Which
process are you talking about, altogether?
Q131 Keith Vaz: Any of the processes.
All the processes that you have.
Professor Dame Hazel Genn: I think
it is about -
Sara Nathan: We had four for the
High Court.
Professor Dame Hazel Genn: Four
for the High Court. I think we had one for the Circuit Bench,
did we not? For clarification, I think we have had four for the
High Court -
Clare Pelham: And none other,
as far as I am aware, for the three other ones under the JAC process.[2]
— 5 complaints regarding exercises started
by the JAC after October 2006 and run under the new JAC processes.
4 of the complaints in this category concerned the High Court
selection exercise 2006-07.
— 24 complaints regarding exercises launched
before October 2006 (ie those launched by either the DCA or JAC
but in all cases finished by the JAC and run mostly under DCA
processes). 8 of the complaints in this category concerned the
Circuit Bench selection exercise 2006-07.
Q132 Keith Vaz: Is there feedback to
those who have been unsuccessful?
Professor Dame Hazel Genn: Yes.
Clare Pelham: Oh, yes.
Q133 Keith Vaz: Who does the feedback?
Clare Pelham: It is done in writing
and it is available on request because we have had earlier feedback
from candidates, particularly through roadshows, but not all candidates
want to have feedback, as it were, coming cold through the letterbox
at the same time as the decision. So we say, "If you would
like feedback, please contact us."
Q134 Keith Vaz: If they wish to speak
to somebody, are you able, or is it all going to be in writing?
Clare Pelham: It is done in writing
so that people can reflect on it.
Q135 Keith Vaz: But if an applicant
says they would like to have a face to face meeting with someone
as to why they have not been successful, are you able to do that?
Clare Pelham: So far, the policy
of the Commission has been that they would prefer that it is done
in writing.
Q136 Keith Vaz: So it is for the
Commission's convenience, not the applicants'?
Clare Pelham: Not for convenience
but for clarity of understanding. If it is face to face people
can sometimes leave the room with a slightly different understanding,
not having heard precisely the nuanced message which has been
given, so for clarity the view of the Commission has so far been
that it should be in writing.
Q137 Jessica Morden: If the Government
moves to a system where judges can be appointed at a younger age,
do you see this as the first step towards a "career judiciary"?
Professor Dame Hazel Genn: I do
not think that appointing judges at a younger age is necessarily
the first step towards a career judiciary. I think we have said
before that age for us is not particularly a factor. I think we
feel that one of the ways in which it is going to be possible
to increase diversity is drawing people in at an earlier stage
of their career into what I sometimes think of as entry level
appointments, but perhaps that is not a very good description,
for example fee-paid tribunal appointments or DDJ appointments.
I do not think that that necessarily means that you are moving
towards a career judiciary because it would still be that even
if you had people at an earlier age these would still be people
who had had experience in either practice or some other legal
field. Of course, at the moment there are proposals to change
eligibility pretty much across the board, actually, so it is very
much an open question what is going to happen with eligibility
in the future.
Q138 Jessica Morden: But you do think
by drawing people in at an earlier age you have got the chance
of having a more gender-balanced and ethnically diverse judiciary?
Professor Dame Hazel Genn: I think
it will certainly help with diversity, yes.
Q139 Jessica Morden: Do you think
the policy requirement of fee-paid part-time judicial service
before you can take a full-time appointment should be retained?
Professor Dame Hazel Genn: I think
that the seriousness of making a full-time judicial appointment
where we know under our kind of constitutional arrangements judges,
once they are in, stay in until they retire. I think that somebody
having served in some sort of fee paid position first provides
an opportunity for evidence of how they have performed in that
role and it seems to me a reasonably sensible arrangement. I know
that some people have argued that it can be off-putting to some
people to have to do that, but if you think about the forms of
evidence you would have available to you when you are making a
decision about appointing somebody to a position from which they
are effectively irremovable then looking at their performance
in a fee-paid judicial role, not necessarily in the same jurisdiction
but performing a judicial role in another jurisdiction, is actually
a very helpful form of information.
2 Note by witness: Between 3 April 2006 and
20 June 2007 the JAC received the following number of complaints
regarding the processes it has been running: Back
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