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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 416 - ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
JUDICIAL APPOINTMENTS COMMISSION
Wednesday 20 June 2007 MS CLARE PELHAM, PROFESSOR DAME HAZEL GENN DBE and MS SARA NATHAN
MR GEOFFREY VOS QC, MS GEORGINA KENT, MS ALEXANDRA MARKS and MS MANJOT DHANJAL Evidence heard in Public Questions 105 - 170
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Wednesday 20 June 2007 Members present Jessica Morden Julie Morgan Mr Andrew Tyrie Keith Vaz Jeremy Wright
In the absence of the Chairman, Keith Vaz was called to the Chair ________________
Witnesses: Ms Clare Pelham, Chief Executive, Professor Dame Hazel Genn DBE, Commissioner, and Ms Sara Nathan, Commissioner, Judicial Appointments Commission, gave evidence.
Keith Vaz: Good afternoon, everyone. I declare this session open and first of all begin by asking all of us to observe a moment's silence for our late colleague, Piara Khabra, a Member of this Committee, who died last night. [Pause] Could I now ask for a declaration of interest from any Members of the Committee? Jeremy Wright: I am a barrister, but non-practising at the moment. Q105 Keith Vaz: My wife holds a part-time judicial appointment. Welcome, Dame Hazel, Clare Pelham and Sara Nathan, and thank you for coming back. We are a little disappointed that the Chair of the Commission is not here, but I understand that she was not able to make the dates that we had in mind. Professor Dame Hazel Genn: No, she is out of the country, and could I pass on her regrets for not being able to be present today? She is very sorry that she cannot be here to give evidence to you. Could I introduce the people who are here from the Judicial Appointments Commission? On my right is Clare Pelham. She is our chief executive, whom I believe you have met before. She is here to answer questions about staffing, resources and the management of the JAC. On my left is Sara Nathan, who I think also has appeared before you before. She was a panel member for the 2006 High Court selection exercise and she has also been very heavily involved in our outreach work, so she will be able to help you on those issues. I am Hazel Genn. I am a lay Commissioner and I have not appeared before this Committee. I am very pleased to be here today and happy to deal with questions on diversity. I am also quite heavily involved in our quality assurance work, so I will try to do my best on those subjects. Q106 Keith Vaz: Thank you very much, Dame Hazel. We are concerned about process and the way in which the Commission has been established, so perhaps you could tell the Committee how many competitions you have run so far to find new judges and how many recommendations you have made to the Lord Chancellor? Clare Pelham: Would it be helpful if I answered on that question? In the last financial year, that is the first year of the Commission, 38 exercises were run by the Commission. It may also be helpful if I explain, as I think we have touched on previously, that the staff of the Commission were running in the first year four different types of exercises because of the transitional arrangements. There were those which were started by the DCA and retained by the Lord Chancellor, which staff at the JAC worked with him to conclude. There were those which were started under the DCA and completed by the JAC, run by DCA processes with some adjustments to take account of the Constitutional Reform Act. I am sorry, this is a complicated story. There were those which were initiated by the JAC before it had devised its own processes and so they were run under DCA processes. Q107 Keith Vaz: Sure, but you must know how many recommendations you have made, how many judges you have appointed since the Lord Chancellor established you? Clare Pelham: I am afraid I do not have that figure with me today, but I can fax it to you. Q108 Keith Vaz: You do not know how many judges you have appointed? Professor Dame Hazel Genn: Approximately 2,000. We had 2,000 applicants, did we not? Sara Nathan: Yes, applications. Q109 Keith Vaz: But do you know how many judges you have appointed? Clare Pelham: I do not have that figure with me today. There is always a question about at what point the appointments are announced and when the recommendations are accepted. Q110 Keith Vaz: How many recommendations have you made? Clare Pelham: I do not have that figure with me today. Mr Tyrie: Roughly? Q111 Keith Vaz: What worries me - and this is the reason why the Committee has asked you to come back - is that we were not particularly impressed with the information you gave on the last occasion, but we took it that you were a newly appointed organisation. You now have been in existence for a while and the Chief Executive does not know how many judges have been appointed by the Commission, is that right? Clare Pelham: I do not have it with me and I will provide it to you. Sara Nathan: I would have thought that would be the sort of question you might want to ask in writing. You would not want us, surely, to tot up and do all the possible permutations we might do? Q112 Keith Vaz: Ms Nathan, this is a select committee of the House, and therefore one would expect witnesses to be prepared to answer questions, if I may ask the question, and have information from the Commission as to how many judges you have appointed. It is a pretty straightforward and simple question. Sara Nathan: Are you including in that judges? Do you mean tribunal members as well? Keith Vaz: Yes, judicial appointments. Q113 Mr Tyrie: Can I just say that the public will find it absolutely extraordinary that a committee which has been created to make judicial appointments does not have an idea roughly how many appointments it has made? Professor Dame Hazel Genn: Could I just say that the committee does not make the appointments, the committee recommends to the Lord Chancellor and, of course, it is actually sometimes - looking even at the previous High Court list it is sometimes difficult to know who has been appointed and who is on a list, so it is not quite as simple as you may think. Q114 Mr Tyrie: Do you know how many recommendations you have made? Clare Pelham: I think it would be better if we provided that information because - Q115 Mr Tyrie: I do think this is a highly unsatisfactory situation, I really do. If a chief executive of an organisation comes before his board, including his non-executive directors, and he is asked a simple question such as, "What was the turnover last year?" or "What was market CAP?" and he does not know the answer, he is not going to last as chief executive for very long because they are the most basic numbers related to the performance of that organisation. It would just be nice and, I would have thought, bearing in mind all the discussion we had last time about how you wanted to change the balance of the Bench, having an idea of these basic numbers must be central to your job? Professor Dame Hazel Genn: Based on the number of exercises that we have actually completed entirely under new JAC processes, we have only actually completed four exercises which have been run entirely under JAC processes. One of those is the High Court exercise. The three others were relatively small and there is one which is with the Lord Chancellor at the moment. So that is the number of exercises which have been completed under our own processes, not those that we have inherited. Q116 Mr Tyrie: How many recommendations were made under those four processes you have named? Sara Nathan: Can I just point you to the High Court first? Q117 Mr Tyrie: I am just asking the Chief Executive if she could answer a question. Professor Dame Hazel Genn: The answer to that question is 24. Q118 Mr Tyrie: Okay, so we do know some of the numbers. Sara Nathan: But it also depends on how you define "appointment". Under the High Court what we were asked to do was what we call a Section 94 list. We came up with 21 names under the Section 94 list, but those are not appointments. That is a list we were asked for, and then we were asked to go on and fulfil direct judge appointments. We have had a vacancy notice which we have not filled yet - it has only just come - for six of that 21. So it sort of explains why we are a little bit tentative about that. We were asked for a list. We have provided that. We were asked for 25 and in fact we have provided 21, and then, as the vacancies come up, we are asked with more specific vacancy notices to fill each specific vacancy, and that happens in the High Court and it happens in the Circuit, for instance. So it is not quite the absolute turnover number that you might think we should be able to give you. Q119 Jeremy Wright: I just want to try and take the argument on a bit, because you have been quite clear that you cannot tell us the figures at the moment and we know that the process is that you make a recommendation but in the end the Lord Chancellor will make a decision whether or not to accept that recommendation. So presumably, as Mr Tyrie says, you will want, in order to know whether the organisation of which you are part is doing its job well or badly, to know what rate of return you get from the recommendations you make? Is he accepting them all? Is he accepting none of them? How is it working? So given that you have not made that assessment at this point, when do you intend to make that assessment? What processes, what mechanisms do you have which will enable you to make that sort of assessment as to how well the process is working? Clare Pelham: The position is that he has accepted all the recommendations which the Commission has put to him. Professor Dame Hazel Genn: That is something which we do know at this point and can say. The other thing that we are checking as we go along is the number of applicants who are coming in, those who are being short-listed and those who are being recommended for appointment and, as the Chief Executive has said, at the moment our recommendations have been accepted. So it is not quite as amorphous as it sounds initially. 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, 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 judge craft. 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 court craft, 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. 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 nuance 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. Q140 Jessica Morden: Are there exceptional circumstances where you can waive that requirement, and if so what would the circumstances be? Professor Dame Hazel Genn: Where we can waive that requirement? Sara Nathan: You do not have to, I suppose, but it is just such a good piece of evidence. You could become a High Court Judge at 35 with none, but it would be a brave person who would make that appointment. Q141 Jessica Morden: Have you had candidates for judicial office who have complained about not being supported by their employer or senior colleagues when they are pursuing a part-time judicial appointment? Sara Nathan: I have not come across any. There were none, as we said, at the High Court level. Professor Dame Hazel Genn: No, it is the sort of thing which gets said to us, that there are concerns, and I think this is something that we have to take on and something which we have begun to take on in our outreach work. We are concerned, not just amongst barristers but actually particularly amongst solicitors, about the extent to which whether taking on fee paid work acts in a sense as a sort of black mark against somebody. In fact we had a meeting with Fiona Woolf of the Law Society. She came to meet the Commission to discuss precisely this point, because our argument is that actually it should add to the richness of somebody's practice to have had the experience of being in a judicial appointment. I think we were in agreement on that. This is one of these issues that we need to work in partnership with the Law Society to get over. We need to reach out to people in solicitors' firms to try and help them, first of all to consider a judicial career and to relieve their anxieties, in so far as we can, about any impact it might have on their future, but again I think this is something the Law Society needs to take on board as well. It is one of the issues that we need to work together on. Sara Nathan: Yes, we have in fact been working together and last week or the week before Baroness Prashar had a meeting with a number of managing partners of the top solicitors' firms to bring out that sort of encouragement, because obviously if solicitors think they are going to damage their career chances of a chance or partnership, or whatever, within their firms by taking on a part-time judicial office they are unlikely to do so. Nobody has actually said it to us direct, it is just the sort of thing you hear in the ether. So we are taking it very seriously as part of our outreach, actually trying to get the senior partners on side, so that it is not only true but seen to be true that going for a part-time office is perfectly compatible with every other form of legal employment. Professor Dame Hazel Genn: But in truth that is not only the problem. One of the things I have been struck by is the extent to which, for example, senior women within the solicitors' profession have very little understanding of judicial appointments and really do not see a judicial career as a possibility for them. Again, I think this is one of the challenges for us and we try to do this in our outreach work, and we are working with the Law Society to get that message out to people, that they should be considering a judicial career and that we very much welcome applications from them. Clare Pelham: Could I just mention one further way in which the Commission recognises the sensitivity of people in employment applying for judicial office, and that is under the Commission nominated referees there is a category which says that if you are a barrister we ask for a reference from your head of Chambers, and if you are a solicitor from your managing partner, or if you are employed from your line manager, but we do make it very clear on the form that if, for reasons of confidentiality, any particular candidate does not want us to seek a reference at that point then it is very open to them to give another name, perhaps a peer, who can comment on their professional standing. Keith Vaz: We have other witnesses and I do appreciate you all have something to say, but it would be very helpful if one of you could answer the question, whoever is most qualified. It is just that we do have a number of other questions to put to you. So if I could return to Julie Morgan, please. Q142 Julie Morgan: You mentioned your outreach programmes. Could you tell us what they are and the purpose behind them? Sara Nathan: The purpose is to make people aware of the possibility for judicial appointment and to encourage them to apply. We have various strands of the outreach. Some of it is not so much outreach as bringing in, for instance a group of us has met a number of people from the minority groups, from the disability action groups, and we are starting to be able, for instance, to directly link and to post our applications through their websites so that even people who do not look at the JAC website - and we get a lot of our applications through that - would have access through that. We have had a number of speaking engagements, also we are very keen on all sorts of conferences. There was a minority lawyers' conference only last month and we had a major representation at that. So there is a lot of that. Then we have the outreach tours in which members of the Commission and members of staff go around various parts of the country, often linked to specific competitions but not necessarily, not quite coaching people but showing people, talking through the form, having somebody who has already attained that office go through what their life is like and being encouraging. We try to make that very non-London centric, so that is all over the country. So there is quite a range. We also have an email mail-out, if you like, Judging Your Future, our magazine, which goes out to 3,000 people a month, and we are also redesigning the website which gets about 9,000 hits a month in order to make that more user-friendly and more open. Q143 Julie Morgan: Have you had any chance to judge how effective those different methods are? Sara Nathan: It is terribly early, except that, if I may add, the trend in our applications is going up. The trend is in the right direction, so we seem to be being successful in encouraging more applications, and of course the next stage will be to look at whether or not we are actually hitting our target groups. Can I just say that one of the reasons why, as you can see, we are quite effusive is that we are highly committed to this task. We pour a huge amount of energy into it and we are entirely committed to all of these kinds of activities and actually we do have quite a lot to say on that. I apologise if all of us have been talking too much, but I think it is a reflection of our enthusiasm and our commitment to the job. Keith Vaz: I do not doubt that at all, a lot of energy but, as I think we know from the beginning, not enough facts. Q144 Jeremy Wright: Ms Pelham, could I ask you briefly about the staff the Commission has at the moment? You will know that this Committee has been concerned that in order to demonstrate the new staff which I know you are keen to see for this process it will be important that there should be new people, and of course we know from the Lord Chancellor that a substantial proportion of the staff which you currently have (or at least that you had in March when he wrote to us on the subject) are transferred or seconded from the Department. You will appreciate also that the public do not know the difference between either someone being employed or being seconded, they will simply see them as the same people. Can you tell us how many or roughly what proportion of those staff who were seconded are still with the Commission and how many have been replaced by genuinely new people (if I can put it that way), and if there has not been much change of staff does that concern you? Clare Pelham: Absolutely. I think I said last time I came that we were then had a staffing complement of around 87. We are now, as of this week, at 94. We have 17 members of staff who are temporary contractors on short-term contracts, which means that 77 of them are on secondment. Of those, seven are on secondment from other government departments and 70 are on secondment from the Ministry of Justice. That breaks down into, I think, 37 who had previously worked for the Lord Chancellor in this area and 33 who had not previously worked in this area but who may perhaps have previously worked in the Tribunal Service or the Court Service and been seconded. I mentioned last time that the secondment policy had its genesis in the original proposal for the Commission to be relocated in 2008, which was the original thinking behind the Department's plan to, as it were, translate the staff on periods of secondment varying between twelve months and two years. I think I have said that a priority for us following that decision on relocation, which the Lord Chancellor gave to us in October last year, was to put in place our own terms and conditions so that we could employ directly staff who would be, as it were, sourced from the private sector, the public sector, the voluntary sector by public advertisement and be employed directly by us. The immediate challenge in April when 40% of our staff left was to replace those and we expect to have terms and conditions to recruit our own staff in place before the end of the year. Those will all have to be approved by the Lord Chancellor, so that when the next tranche of staff come to the end of their secondment, which is about a further third, we will be advertising widely and hoping to bring in fresh perspectives and people from fresh backgrounds. There is perhaps just one other interesting thing I might mention, which is that there is an exception to that, which is that we have two senior staff who are coming to the end of their secondment before the terms and conditions will be ready and as an exceptional measure we have agreed with the Ministry of Justice that we can advertise those posts, as we have done in the national newspapers, to people of all backgrounds but as an interim measure they will be employed by the Ministry of Justice and when our terms and conditions are in place they will become direct employees of the JAC, because we felt for those two very senior leadership roles it was very important that we did not hold fire until the terms and conditions were in place. Q145 Jeremy Wright: You will appreciate it is not just the terms and conditions that concern us, it is whether these are genuinely new people who take a different attitude from the attitude which has been taken up to this point. Clare Pelham: Yes, absolutely. Q146 Jeremy Wright: You are confident, are you, that this fresh perspective will be achieved because from what you have told us it sounds as though you are not making much progress in the right direction? The letter from Lord Falconer on 12 March to the Committee said that there were 74 staff seconded from the Civil Service. You are now saying there are 77? Clare Pelham: Of whom 70 are from other government departments, yes. Q147 Jeremy Wright: But they are not being recruited from outside Government yet? Clare Pelham: No, and we cannot technical employ directly until we have got these terms and conditions in place. Jeremy Wright: I think there will be some other specific figures that we will ask for, perhaps in a letter, but I will leave it there. Keith Vaz: I think the point Mr Wright is trying to make is that to be genuinely independent you have to have new people. You do not want to repeat the mistakes which were made by the Ministry of Justice. Even though they have changed their name, they are still the same people who are coming to you. Thank you very much for giving evidence. I have to say the Committee is concerned about the lack of factual information, especially at the start of this evidence session. Nobody doubts energy and commitment, which is there in abundance, but of course this is not a charity you are running, you are running a body which appoints judges, and we would expect that the next time the Chief Executive of the Judicial Appointments Commission comes before a select committee of the House she will know how many recommendations had been made to the Lord Chancellor for the appointment of judges. We will write to you and seek this information. We will ask you to come and give evidence to us again and hopefully on that occasion we will have the Chairman of the Commission as well. Thank you for coming. Witnesses: Mr Geoffrey Vos QC, Chairman, and Ms Georgina Kent, Bar Council, Ms Alexandra Marks, Chairman of the Law Reform Board, and Ms Manjot Dhanjal, Director of Equality and Diversity, the Law Society, gave evidence.
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 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, although 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. 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 pupilage 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 is 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. Q160 Keith Vaz: Are you saying they take up references from people other than those who are on the form? Alexandra Marks: Yes, that was exactly the point which was just made by the JAC. They have their own what they call "nominated" referees. Now, that does not just include, it appears, people such as your head of Chambers, or your head of department, which are the examples given, but also judges who may have worked alongside you in another capacity. We are very concerned about that. The other point I very briefly wanted to make, and I know it is not the JAC's responsibility, but that leads on to my third point, which is that because of the split of responsibility it is very difficulty to find out how one addresses issues such as what the job itself and the working practice is, because it is not just a question of getting in through the door. Any sensible applicant is going to think not just about the application process and what impact this will have on their career but how they are actually going to be able to combine the requirements of the job which they are now required to do through part-time fee paid experience generally first and the day job. That is a really enormous issue for our profession and is perceived by many of my professional colleagues as a real barrier in a way which does not, I think, apply to the Bar. Keith Vaz: Thank you. Q161 Julie Morgan: Ms Marks, I know that the Law Society has a number of schemes, Gender Equality, Equality and Diversity and Diversity Access schemes. Can you tell us whether you have any results from the application of those schemes? Alexandra Marks: It is probably best if I hand over to Manjot for the details. Manjot Dhanjal: The Law Society is a public body under the public duties, under the anti-discrimination legislation, so obviously we rightly have the gender, race and disability equality schemes, and that includes a whole range of activity which we undertake. We do monitor it and we have evaluation that we can certainly provide information on, much more detailed information. The diversity access scheme you mentioned is actually quite an innovation. It was set up a couple of years ago to support not necessarily young students, but students who have the talent to become solicitors but who face certain obstacles. Therefore, one of the things the scheme does is to provide financial support to undertake their LPC, for example. That is the only scheme which does that. It also has a mentoring and work placement strand, but there are other schemes around which do that as well, and certainly we do monitor that and evaluate that. Q162 Julie Morgan: What sort of financial support? Manjot Dhanjal: Financial support for the LPC? It works out at about £7,000 to £8,000 per person per year. Certainly we do monitor that and at least 70% of the take-up is either from women from black and minority ethnic students or from students who have disabilities. Q163 Julie Morgan: So you feel they are having an effect? Manjot Dhanjal: That is a concrete impact, i.e. those few people are coming into the profession. Q164 Julie Morgan: Have the professions acted upon the recommendations made in the DCA's working group report Diversity in the Legal Professions, which suggests publishing diversity statistics? Is there anybody who can answer? Manjot Dhanjal: I was on the working group, so I suppose I should answer that one. In fact the Law Society itself has published statistics on the profession generally for many years, so we are quite able to pick up trends around the improving diversity of the profession. The particular recommendation in the DCA report at the time was that we should ask firms to publish their diversity statistics, and I know the Minister wrote to the top 100, probably the top 200 firms to do so. The Law Society does support that initiative and we did do a follow up letter to all the firms to ask them to apply that recommendation. I really do not know at this stage how many actually do it. Q165 Julie Morgan: Is there any way of finding out how many do it? Manjot Dhanjal: Yes, I think the Ministry of Justice keeps a record of that. Q166 Julie Morgan: So we can get that information from the Ministry of Justice? Manjot Dhanjal: Yes. It is perhaps worth adding, if I may, that voluntarily the profession has been involved in some. I have brought the report, for example, which was done by the black solicitors' network in which many firms participated, and both firms, even if they have not done it historically, have kept their own data certainly in recent years. Firms like my own, which is a very large one, are very proud of their diversity credentials. The issue, I think, is not so much whether the profession is diverse because actually we feel that our profession is considerably more diverse than the judiciary is and the judiciary reflected even our own diversity, which is far from a perfect reflection of the society in which we live. It will be a very powerful step forward but it is not at the level yet. Geoffrey Vos: Could I just say briefly for the Bar that we, for many years, have published diversity and gender statistics and we continue to do so. We have introduced a new monitoring form this year to ask for more detailed questions to track people from entry to the BVC course going through because in many cases we had a lacuna of statistics of people entering the profession and we could not find out who had actually entered and then who has dropped by the wayside. So we have a very detailed form now which is going to make a great improvement in the data. In addition, the Bar Standards Board is introducing new monitoring procedures which will make sure that Chambers carry through that exercise. The final thing is that Chambers' statistics are slightly different from solicitors because Chambers tend to be smaller. The statistics are probably less meaningful because Chambers are smaller, but we have cooperated with the desire to publish the major Chambers' statistics and our Bar Council is urging the Chambers to publish them on their website. Alexandra Marks: May I just also make another point, which is that it is not so much the individual Chambers' or indeed firms' diversity statistics that count, it is across the profession, because it is not as though the Commission is targeting individual Chambers or firms, nor should they be, it is actually the diversity profession-wide which is most important. So although I can understand why the question might be termed by looking at firms, actually it is only if our diverse recruits to the profession leave the profession that it is really, I would suggest, an issue as far as that feeds through to judicial appointments rather than them leaving an individual practice and perhaps leaving Chambers. Q167 Jessica Morden: What do you think would be the implications of the Carter review on ethnic diversity amongst solicitors and within the professions? Alexandra Marks: Again, perhaps Manjot can start off on that one? Manjot Dhanjal: I think this is probably well-rehearsed in terms of legal aid reforms. Clearly I would assume that at some point there will be a full regulatory impact assessment and we will know the detail then, but the initial indications are that there will be some impact on smaller firms. The fact is that minority owned firms (if I can use that term) are over-represented in the smaller firms and certainly some early research had indicated that there will be a disproportionate impact on minority ethnic owned firms, if I can put it that way, but we will wait to see what the full regulatory impact assessment looks like. Q168 Keith Vaz: Could you comment, both Mr Vos and Ms Marks on the Commission's view that those who do not succeed in becoming judges are happy with a written statement from the Commission telling them why they were not good enough to be judges, because the anecdotal evidence I have received is that people actually quite like to know what is wrong with them and would like that feedback so that they can either improve or add to their curriculum vitae or change their referees and that a simple letter, however detailed, does not deal with the issue. What is your view on that, Mr Vos? Geoffrey Vos: What I have heard anecdotally supports what you have just said, that I think many people would like to hear orally why they went wrong and be able to ask probing questions as to the position, but I have to say I certainly understand the starting point of the Commission, which is that it is better to have something in writing at least to begin with which expresses in clear and unequivocal terms the reasons because I think what was being said by the Chief Executive was that you get nuanced answers which can be misinterpreted which do more harm than good. So I think what I would like to see, but I would need further consideration before making it a formal position on behalf of the Bar Council, is a clear written answer followed, if requested, by an interview to follow up and then there would be no danger of misunderstanding and the necessary feedback would be given to people who have spent and invested a great deal of personal time and energy in making the application. Q169 Keith Vaz: These poor men or women who have been not appointed to the High Court after a whole career at the Bar or in the solicitors' profession, who are told, "Sorry, you're not good enough," even they deserve to be told, do they not? Geoffrey Vos: Of course, and they deserve to be told what prospects they have in the judiciary, even if not on the High Court Bench. Alexandra Marks: I would like to agree entirely with that. Again, it is difficult to say without having conducted more research into it, which we have not done, but our anecdotal experience is that actually people do put a great deal of store on the feedback and certainly the anecdotal evidence which I have heard personally and directly is that first of all the feedback takes a long time to come through, secondly that it tends to be rather brief, and thirdly that I think the candidates feel quite frustrated if not given the opportunity to follow it up, as Geoffrey has suggested, by actually probing a little bit further into what this actually means and whether it is, if you like, a remediable issue or whether it is one on which there is really no hope. So I think it would be much better if there was an opportunity given to get feedback orally, after there had been initial correspondence perhaps. Q170 Keith Vaz: You watched the evidence session with the Commission. This Sub-Committee was set up because of our grave concerns following the first evidence session. We believe this is a critical area of policy which does need to be monitored and we will be having a further evidence session again later in the year because we want to keep on top of this, but we would also like to hear from yourselves. We do not want you to be whistleblowers, but if there are issues which the Commission should be taking up or there are areas which need to be looked at, please do write to us because it will inform our view as to how we take these inquiries forward, because after all the judges come from your professions and it is therefore vital that we know exactly what is going on, so thank you very much. Geoffrey Vos: Could I just come back on one issue, which is the legal aid question which Ms Morgan asked. I feel that we ought to make clear to the Committee that we are very concerned at the Bar Council that the pressure on legal aid fees will have an impact on diversity within the profession. It will reduce the number of women in the profession because what we are finding is that most women are pushed into publicly funded areas, family or crime. We have a real problem with the retention of women through having children, and so on, and the pressure on legal aid fees makes it less attractive for them to come back. Whatever steps we take - and we take many steps - to retain women and attract them back into the profession, we find that the pressure on legal aid fees makes it more difficult. The same, by the way, applies to BME groups because they also tend to operate in publicly funded areas. I do not want to re-open a whole can of worms, but it is a very important issue to mark before this sub-committee. Keith Vaz: Thank you very much. |