Examination of Witnesses (Questions 60
- 64)
TUESDAY 13 MAY 2008
RT HON
JACK STRAW
MP
Q60 Chairman: Can I turn briefly
to one final matter, which is diversity in the judiciary. There
has been quite widespread comment that recent competitions run
by the Judicial Appointments Commission have not significantly
improved the picture, and when Mrs Justice Dobbs gave her lecture
I do not think she was speaking either out of turn or not reflecting
what is a quite widespread concern that, perhaps contrary to hopes
and expectations, the previous system, which had many defects
both in principle and some in practice, had in fact enabled previous
holders of your position to make some limited progress on tackling
diversity problems and that the new system, although formally
a more correct system, actually is not delivering that. What do
you say?
Mr Straw: What I say is that I
think these anxieties are justified. We cannot go back to the
old system, but the expectation that the establishment of the
Judicial Appointments Commission would lead to a more diverse
judiciary have so far not been fulfilled, but it is early days.
The chair of the JAC, Baroness Usha Prashar, and her colleagues,
the judiciary and I are all very well aware of this and we are,
and I am, determined to do everything that we can to ensure that
amongst the other benefits of the new Judicial Appointments System
is a much more diverse judiciary, and I have been devoting a great
deal of time and energy towards that. Let me just say that when
I presided at the silks ceremony six weeks or so ago, it was visible—because
I was in Westminster Hall, high up, and you looked at the 98 new
silks who had been appointed—that the vast majority of the
silks were, like all five parliamentarians around this table—
Q61 Chairman: White, male.
Mr Straw: ---white, male, middle
class. I make that point because this is not a problem confined
to the judiciary, it applies in government, politics, elsewhere
in the public sector and in much of the private sector. My particular
responsibility just now is in the judiciary, and the figures for
the latest silk selection were that of 98 new silks only 20 were
women and four—I think they were all men but I will check
on that—were not white and they were all of what I would
call South Asian origin. There were none of African or African
Caribbean origin or heritage. That is not acceptable, and everybody
accepts that. How to you deal with it? What you have got to do
is to look at the bars. I was having a discussion on this with
a group of the senior judiciary yesterday and they were making
this point. It is not enough to say there are equal opportunities
and anybody can apply. You have got to ensure that the bars which
are there are removed so that people have equal chances of success
as well, which is a different point, and there are some specific
bars. The legal profession is good and it has developed well in
terms of the numbers of both women and black and Asian people
going into the professions, but what is palpable from the silks
selection is that 20 years or so on the candidates for the upper
levels of the Bar and, therefore, the upper levels of the judiciary
have been winnowed away so there is still a disproportionate number
of white, male, middle-class men and far too few of the others.
For example, women and black and Asian people are more likely
to go into salaried employment, and they can do extremely well
there, but one of the key routes into the full-time judiciary
is fee-paid appointment as recorders, or as part-timers in the
Tribunal Service. It is inherently more difficult for people to
take on those fee-paid positions if they are employed than if
they are self-employed at the Bar where it is built into the system.
So that is a crucial issue which I am currently examining. There
is also the issue of what is called non-statutory eligibility
criteria. Statutory eligibility criteria built into the judicial
appointment system is statutory and cannot be changed until the
law is changed. There are also non-statutory criteria. They say:
this particular tribunal has a requirement for X and they should
therefore be specialised in this area. One of the reasons why
we do have a very high quality judiciary in this country is we
have got people who sit on the bench within the tribunals who
know what they are talking about, but if you take that too far
then you restrict the number of candidates who come through other
than the absolute traditional route, and so trying to achieve
a balance there is very important. There are consequences here,
I may say, which again have got to be teased out. If you want
to have a more even starting post, and a genuine one, for the
selection processes as well as doing things like more mentoring
of candidates and accepting that people will start to select themselves
out because their credit is not good enough, we may also have
to accept that, since the fee-paid part-timer may not be available,
we have to revert to having a probation period for appointments:
because there is a natural anxiety that if people have not had
a particular experience in an area and are put on a full-time
job they could then find it is completely inappropriate and there
may not be any way back. So that has got to be considered; and
it raises important issues, because it is fundamental that at
the higher levels of the judiciary there is tenure, but chairman,
I am really concerned about this. I look forward to any recommendations
of this Committee on this issue. I just say that there is no lack
of willingness by the Judicial Appointments Commission, by the
judiciary, or by me to try and crack this one because I think
we have to do it.
Q62 Chairman: Have you checked back
on the eligibility rules that were applied to some of the competitions
that have been criticised to see whether formal barriers, and
you gave one example then, did in fact restrict what might otherwise
have been eligible and very suitable applicants?
Mr Straw: I have not. I have not
done that exercise. I have just refused a request for non-statutory
eligibility criteria, in particular one particular competition,
because I thought that it was not necessary and it meant that,
in practice, a number of potentially good candidates, women or
black or Asian, would be put off.
Q63 Chairman: Is this a three-way
discussion with yourself, the JAC and the senior judiciary?
Mr Straw: Yes, and it has got
to be in that way. Maintaining the quality of the judiciary is
absolutely fundamental, and it is worth putting on the record
that, although there have been teething problems with the JAC—it
is a different system from the one that the judiciary have been
used to for centuries—there has been virtually no criticism
whatsoever by the senior judiciary or anybody else about the quality
of the candidates selected by the JAC, and that is greatly to
the credit of the JAC. They have established their credibility
in that fundamental achievement; so they have managed that. What
we now have to do from that base is both make the system swifter,
which is part of the purpose of the proposals in the Constitutional
Reform Bill, and achieve much more diverse outcomes.
Q64 Chairman: Lord Chancellor, thank
you very much indeed.
Mr Straw: Thank you very much.
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