Memorandum by Rt Hon the Baroness Hale
of Richmond
1. My general views are still those contained
in the written and oral evidence given to the House of Commons
Constitutional Affairs Committee for its Report on Judicial Appointments
and a Supreme Court. The oral evidence is at 2003-04 HC 48-II,
Ev 30-35. My written evidence consisted of various papers which
can be supplied. I am also aware of, and in general agreement
with, the views expressed by the United Kingdom Association of
Women Judges and the Association of Women Barristers in their
responses to the DCA Consultation Papers.
PART 3: JUDICIAL
APPOINTMENTS AND
DISCIPLINE
2. There was a strong case to be made for
a Judicial Appointments Commission long before there was any question
of abolishing the office of Lord Chancellor. That case had nothing
to do with a risk of political appointments or political interference
with the independence of the judiciary. Neither of those had been
a serious problem for many decades. The problem was the lack of
diversity. It would be a serious concern if the proposed replacement
of the office of Lord Chancellor with a Secretary of State led
to a concentration on the need to protect independence, which
in turn led to an increase in judicial involvement in or even
control of the appointments process. This will do nothing to address
the diversity problem. Indeed it could even exacerbate it.
3. There is a pressing need to increase
the diversity in gender, ethnicity and life-experience upon the
Bench. The figures are shocking. The need for change is evident:
to increase public confidence that the courts are for all the
people and not just a selected minority; to symbolise the equality
and fairness which it is the courts' task to protect; to make
the best use of the legal talent and expertise available; and
to bring a wider range of perspectives to the judging task—this
last being particularly important at the higher levels where new
law is made.
4. Serious scholars of the problem no longer
believe in the "trickle up" theory. If that were so
we would already have twice the number of women circuit and High
Court judges that we do. There are systemic problems, which the
present Commission for Judicial Appointments is exposing, in the
way we define and evaluate the qualifications for judicial office.
5. The main problems are:
(1)
"merit" is defined, both consciously and
unconsciously, by reference to the qualities and, more importantly,
the careers of the existing incumbents;
(2)
the existing incumbents have a disproportionate influence
on the appointments process, not only at the final selection stage
but, perhaps more importantly, at the sift or short-listing stages;
(3)
the judiciary is rigidly stratified into different
categories with little movement between them and no planning for
career progression even in the most suitable cases, so that those
whose experience is only thought suitable for the lower echelons
have little opportunity of demonstrating by good judging that
they should go further.
6. These problems will be tackled only with
strategic thinking by a strong and independent body which is able
to recognise and retain what is good about the present system
but also has sufficient knowledge and expertise in recruitment
and employment practices generally to recognise what is wrong
with the present system and to generate ideas about how to improve
it. Lawyers are not the greatest innovators in the world. Many
have little experience of life in professions or occupations outside
the law where genuinely objective merit assessment, equal opportunities
and family-friendly working practices were adopted long ago.
7. New strategic thinking is unlikely to
happen if we have a Judicial Appointments Commission which is
dominated by the judiciary together with others who have an interest
in the system remaining as it is. With the best will in the world,
they have difficulty in recognising the problem, and even more
difficulty in accepting that a system which has produced such
a generally excellent judiciary could possibly be improved. No
one is saying that the present judiciary lacks "merit".
We simply say that there are many other meritorious people out
there who are not being recognised or considered.
8. Nor is it likely to happen unless that
body is specifically charged with trying to remedy the major mischief
in the present system. Once it is recognised that our present
methods of defining and assessing "merit" are not the
only ones possible, there is no incompatibility between that aim
and the aim of appointing on merit. Indeed they should be complementary.
It would be extraordinary if the equivalent bodies in Scotland
and Northern Ireland were set such a task but the body in England
and Wales was not.
9. The Report from the House of Commons
Select Committee, and the Government's response to it, indicate
that these points have been taken on board. But it is difficult
to find them in the present Bill.
10. I also share the view (recently expressed,
for example, by Robert Stevens) that the system needs to be democratically
accountable. This may not require that ministers be given a choice
in individual appointments. As far as I know, the Prime Minister
and Lord Chancellor are not questioned in Parliament about individual
appointments at present. But it does require that the Appointments
Commission, through the Minister, be accountable for its work
as a whole, including the criteria and methods by which it makes
its selection.
PART 2: THE
SUPREME COURT
11. My support for a Supreme Court separate
from the legislature has been reinforced during the three months
I have spent in the House of Lords. This is an intensely political
place. This may have become more apparent since the party political
balance became closer and the House of Lords has felt much freer
to engage in serious challenges to the House of Commons. This
is none of our business as judges: yet if we take an interest
we risk compromising our neutrality and if we do not we are seen
as remote and stand-offish.
12. If a Supreme Court is to be set up, any discrimination
in rights of access between citizens of the three jurisdictions
should be justified or rectified. No one has produced an objective
justification for (a) the difference in leave requirements in
civil cases, or (b) the difference in jurisdiction in criminal
cases. For what it is worth, I would favour a universal leave
requirement and jurisdiction in Scottish as well as English, Welsh
and Irish criminal cases. I would also favour the development
of formal criteria for giving leave, criteria which recognised
that this is a UK court rather than a second tier appeal in each
jurisdiction.
13. The case for diversity at Supreme Court
level is even stronger than it is a trial court level. A second
tier appeal court is already far removed from the problems facing
the trial judge. It has a role in shaping the law which is quite
different from that of the first tier appeal courts in any of
the three jurisdictions. It is often involved in questions of
legal policy. It needs a variety of legal and life experiences
to feed into that discussion.
14. I am sorry that the "Government
does not believe that it is appropriate to make direct appointments
of non-practising lawyers to the Supreme Court". Their reason
is that members should have experience of presiding in the lower
courts. Yet the Bill (clause 19) retains the possibility of appointing
people who have held no such office and indeed may not actually
be in practice. Such flexibility has worked extremely well in
other jurisdictions. I hope that it will not only be retained
but applied in practice. The aim should be to seek out the best
judicial talent wherever it may be found in the legal community
rather than restricting it to one very specific and specialised
part of that community.
15. There is a real problem of isolation
in the "ivory tower" that any institution insulated
from outside pressures may suffer. Earlier research on the Law
Lords showed how isolated they were from the legal community generally,
let alone from the general public. Combating that may be one reason
why some of our number are keen to remain connected with the different
world of Parliament. This again increases the case for diversity
in background and experience, as well as for other means of ensuring
that we keep in touch with the "real world", wherever
that may be found.
CONCLUSION
16. A strong case can be made, both for
a Judicial Appointments Commission and for a Supreme Court, independently
of the proposed abolition of the office of Lord Chancellor. I
hope that those cases, and the reasons for them, will not be lost
sight of in what is a rather different concern, which is how the
integrity of the law and the legal system will be defended in
Government and Parliament once the Head of the Judiciary is no
longer there to do it.
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