Examination of Witnesses (Quesitons 148-159)
MR GEOFFREY
VOS QC, MS
GEORGINA KENT,
MS ALEXANDRA
MARKS AND
MS MANJOT
DHANJAL
20 JUNE 2007
Keith Vaz: Good afternoon. Thank you
very much for coming to give evidence to us.
Q148 Jeremy Wright: Can I ask you all
really to give us a general sense of what you feel the JAC has
achieved in its relatively short life thus far, whether you think
it is making a difference and what further changes you would like
to see it make? Perhaps I can start from the right-hand side and
work left. Ms Dhanjal, if you could tell us what your perception
is of how they are getting on?
Manjot Dhanjal: I will only make
some initial comments because Alexandra Marks will pick that particular
question up in more detail. I think my general opening remark
would be that there has been some progress and clearly the ambition
to make more open recruitment processes must be a good thing.
I think we would need to examine very closely how that has actually
worked out in practice in terms of the actual appointments, and
clearly it is early days yet. We do not have all the evidence
yet. That is the general comment I was going to make, but I know
Alexandra is going to make some more detailed comments on the
Law Society's position.
Alexandra Marks: Yes, if I may.
Thank you very much for the opportunity to do that. The Law Society
greatly welcomed the creation of the Judicial Appointments Commission
and thought that it was a marvellous opportunity to sweep away
the old and rather discredited procedures and introduce some new
fresh ones which would inspire confidence, particularly in our
profession where there has been a long-held view that solicitors
were at a serious disadvantage when it came to applying for judicial
appointments. I think our feeling is, building on what Manjot
has just said, that while there have been some improvements there
has been something of a missed opportunity really to start afresh
and I think with your questioning just now you touched on that
with a large number of the staff members at the JAC having been
transferred from the DCA and hence, we would respectfully suggest,
the culture being much the same as it was before. That is not
any criticism of the Commissioners themselves or the Chairman,
or anything of that sort and we do understand, of course, that
there were difficulties in having to take over a number of selection
exercises when they were part way through, and that clearly put
the Commission at a disadvantage to start with. Although there
are some promising signs more recently—and I have looked
myself at some of the literature, for example, for the current
selection exercises, which is a slight improvement, I would say,
on the previous ones, I think there are still some issues there.
I can speak from personal experience, having myself a judicial
appointment and therefore having applied as a solicitor, but we
still feel that the Commission has not got off to a good start.
There have been some very unfortunate incidents which have undermined
the confidence within our profession that this really is a fresh
beginning and there is, I am afraid, especially for solicitors,
a sense that they are still at a serious disadvantage. It is true
that the statistics we have seen so far suggest that there are
improved success rates, if I can put it that way, at the lower
levels when we are talking about Deputy District Judges and District
Judges, Tribunal Chairmen, and so on, but not at the higher levels,
for example Recorder, which is largely perceived (rightly, as
far as I can tell) as being the first stepping stone to a more
serious high-level judicial career. We see real problems there,
particularly with some recent experience which, if anything, has
reinforced the perception (which we were told was a misconception)
that actually being a District Judge is a bit of a glass ceiling
and does not lead anywhere very much. So we are rather disappointed
about that. The length of the application process is still a cause
for concern. This appears to have been addressed in what we regard
as a rather back to front way than an understandable way, which
is to foreshorten the period in which candidates have to apply.
So although there is now a much shorter period during which applicants
have to apply—about three weeks, which is actually incredibly
short—if you are a fully committed professional person actually
the total process still, according to the Commission's own incredibly
complicated time line—I do not know if you have seen it—can
still be up to 22 months. For members of our profession, many
of whom—
Q149 Keith Vaz: Twenty-two months
from application to decision?
Alexandra Marks: To appointment,
yes. My own period of appointment was longer than that. It is
quite staggering. In fact the appointment was said to be from
the moment I got the letter and accepted it (for which, incidentally,
typically I was given eight working days, having been kept waiting
for nearly two years), but when I did actually accept the appointment
that was when I was appointed, despite the fact that I could not
actually sit until six months later and had been through the necessary
induction course. There simply was not one until then. So I think
there are some issues like that which, if I may say so, are concealed
and this is an issue actually which we raised ourselves quite
recently with the Judicial Liaison Group.
Q150 Keith Vaz: Thank you, Ms Marks.
Could we move on to Mr Vos.
Geoffrey Vos: Thank you, Mr Vaz.
I think it is important not to be deceived by statistics because
one of the problems with judging a very young body like the JAC
from statistics is that it has only been in place a very short
time. The profession upon which it draws, which is very much the
Bar—and I am entirely supportive of what Alexandra has said
about the need to draw on solicitors as well, but at the moment
they tend to draw mostly on the Bar—is not very level in
terms of diversity at the top end, and therefore when one looks
at their diversity statistics one would not be surprised to find
that they are not appointing, for example in the High Court Bench,
very many of the BME or minority applicants.
Q151 Keith Vaz: I think Mr Wright's
question was wider than that. It is not just about diversity,
it is about the process. How do you think they are doing so far?
Geoffrey Vos: I think that the
Bar Council thinks that the process is a good one. It requires
quite a bit of streamlining and we have been discussing in detail
with the JAC how it may be streamlined and I must say I am rather
surprised to hear the story about 22 months, which is obviously
far too long, but the process and the objectives and the reduction
of the criteria—and they have taken a huge amount of work
to confine the criteria to the essential criteria which is necessary
for appointment to the Bench—has been a good process and
broadly I think the Bar finds it a fair and sensible process which
will in time produce a better diversity of appointment. So I would
not be as negative as the Law Society has been. I think we will
see very great benefits coming through. There have been problems.
There was a problem with the Circuit Bench round, which was extremely
unfortunate but which was immediately rectified. It has caused
a little loss of confidence at the Bar as well as at the Law Society,
but it has now been rectified.
Q152 Keith Vaz: Do you have someone
as a representative for the Bar Council on the Commission?
Geoffrey Vos: We do. We have one
member on the Commission.
Q153 Keith Vaz: And so does the Law
Society?
Alexandra Marks: Yes, we had an
appointment if you like, but that individual is no longer associated
with the Law Society.[5]
Geoffrey Vos: We have an active
barrister on the Commission, and the Commission has a very broad
representative membership, but I think the most important thing
is that the Commission has public confidence and I do not believe
that has been damaged. I think it is important that they get a
judiciary in due course which is representative of the public
which the judiciary serves and far more representative than now,
but in many respects I think the obligation is on the professions,
and my profession perhaps in particular, to make sure that we
have a broader input into the profession so that when it comes
to the top of the profession it is possible to have a more broad
-
Q154 Jeremy Wright: That was to be
my next question. So do we take it from what you say then that
you are content with the way in which the JAC are operating and
you expect that if they continue to operate the system in the
way they have, having ironed out the kinks which you have referred
to, eventually the situation will right itself?
Geoffrey Vos: We are never content
with anything. We like to see improvements and we hope the JAC
will continue to improve itself, but we think the JAC is going
broadly in the right direction. I think provided we do our job
in making access to the Bar, and indeed to the solicitors' profession,
more accessible to people from all backgrounds—and obviously
it will take some years, but I am hopeful that we are actively
taking steps to make a real difference to access—as that
happens, that will feed through into their processes, which are
transparent and are fair.
Q155 Jeremy Wright: Can you then
summarise what the Bar is doing to broaden the diversity of the
Bar at all levels so that, as you say, that pool for judicial
office can then be as wide as possible?
Geoffrey Vos: I would be delighted
to do that. We appointed a Commission chaired by Lord Neuberger
to look at access to the profession with the objective of making
sure that access was available to all people from all backgrounds.
Perhaps the four things we are doing actively now is that we have
a placement programme to take people from schools from underprivileged
areas who are talented and introduce them to professional life
at an earlier age than they would normally be introduced so that
they are better able to compete when they go to university and
beyond into the profession. We have a loan programme for the Bar
vocational course, hopefully funded by the banks, which will for
the first time provide the ability for every BVC student to get
a loan so that they will not be excluded for want of funds, which
has been a huge problem in the past. We are taking steps to make
sure that all interviewing panels in pupillage and tenancy will
be trained in diversity matters because we have found that there
is a subconscious tendency to choose people like yourself, and
barristers tend to come, I am afraid, from a rather monolithic
background and it is very dangerous if you are even subconsciously
choosing people like yourself because where you have two equal
candidates there is a tendency to exclude the one who comes from
a different background. Training is required for that and I am
very, very keen to see more training so that everybody who makes
these interviews is trained and properly trained. Those are the
three main measures at the moment, but Lord Neuberger is looking
at a whole raft of measures which he will report on in November
and I hope will be speedily put into effect.
Q156 Jeremy Wright: Thank you. Ms
Marks, I want to come to you in a moment on the same subject,
but before I do, Ms Kent, could I just ask you, from your perspective
how much do you think the availability of judicial office influences
those who come into the profession, into the Bar? Are they actually
coming in because they want to become judges and therefore are
influenced by how easy they think it will be for them to become
judges, or is this something you only consider later in your career?
Georgina Kent: My experience is
that people who come into the profession come in to be either
barristers or solicitors and they do not come into the profession
to be judges. I have experience. In fact I am of the same vintage
of Recorder as Alexandra. I had experience of a very long process,
but I also do quite a lot with the JAC to try and promote younger
and different people to become Recorders or Deputy District Judges
and my experience has been that they at the JAC are very enthusiastic,
including, funnily enough, the older more established staff, and
very inclusive about the people they try and encourage to come
to the judicial profession. The problems are not just what the
JAC has to deal with, there are all the other factors, including
the lack of any sort of mentoring or any sort of professional
development for someone who is a Recorder. I do not know what
Alexandra's experience is, but I have been a Recorder since 2002
and nobody has ever come to me and said, "Well, what would
you like to do next and how could we develop you if you happen
to be the right calibre of candidate?" to do whatever.
Q157 Jeremy Wright: And that is something
the JAC should do?
Georgina Kent: That is not within
the JAC's remit, but at the moment it is not within anybody's
remit, and if you want to encourage people and you want a career
profession then you need to take them—if you get people
into the profession young there is no point taking them in there
and stacking them on a shelf. If you want to encourage good candidates
then in a way there has to be some sort of career development,
as there would be in any other profession or employment situation.
Alexandra Marks: Can I just comment
on some of the things I have heard, because there are a couple
of important points that I would like to convey to you?
Q158 Keith Vaz: This is not a debate
with the Bar Council!
Alexandra Marks: I do understand
that and I am not debating the issue with them, but I think it
is an issue which affects our profession much more than theirs.
It does revolve around the process which is used by the JAC and
one thing which does cause us enormous concern is the use of references
and the timing of the taking up of references because, as I am
sure you will appreciate, members of our profession are much less
likely to have encountered senior members of the judiciary or
those who are likely to be regarded as reliable (if I can put
it that way) referees than members of the Bar, and this causes
a real problem if the references are taken up at what we would
regard to be an inappropriate time, by which I mean at a time
when they influence the decision whether or not to even interview
the candidate, let alone whether or not to offer them the position.
Q159 Keith Vaz: Is it the taking
up of the references or the time it takes the referee to write
back?
Alexandra Marks: No, it is the
time they take them up, and the forms actually say that the referees
will be approached before the sift. Now, our concern about that
is that someone whose form on the face of it is not very good
and they therefore get through because they get very good references,
but perhaps worse, the other way round, someone whose form on
the face of it looks very good may be excluded at that stage because
a reference is being taken up not even by referees of their choosing.
We have heard some real examples of people being excluded from
interview because comments have been made, for example, by judges
at a court where an individual has sat in another capacity or
who has worked in another capacity, and quite inappropriate comments,
it appears, have been made.
5 Note by witness: On appointment, he resigned
from the Law Society Council. Back
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