Examination of Witnesses (Questions 320
- 332)
WEDNESDAY 7 MARCH 2007
PROFESSOR DAME HAZEL GENN
Q320 Lord Peston:
What you are saying is that there is research evidence that shows
that these are matters which the public cares about.
Professor Dame Hazel Genn: I think there is
research evidence that shows that the public cares a lot about
the justice system, yes.
Q321 Lord Goodlad:
Could I ask Professor Genn to what extent you think that the Lord
Chief Justice and the Judicial Communications Office are fulfilling
their mission to enhance public confidence in Judicial Office
holders and what, if anything, they could do more of or better?
Professor Dame Hazel Genn: I think it is early
days, they are finding their feet and they have got a lot to do.
There has been a massive shift in responsibility and administrative
responsibilities and the like. There is potential there in the
future and, I suggested this earlier on, first of all, for dealing
with the fire fighting issue, trying to correct misreporting of
decisions or misunderstandings about judicial decisions, so I
think there is a role there for the Judicial Office. I think there
is a longer term role, and I would hope that they would see that
there is a longer term role in terms of being proactive. We have
not got a lack of public confidence but enhancing public confidence
and making sure that it stays high in the future, there is potential
there. I do not know whether they are currently exploring that
but I think, as I said, there is a shared responsibility between
DCA and the Secretary of State for Constitutional Affairs as the
person responsible for the functioning of the justice system and
the courts but also for the Judicial Office which has responsibility
for the judiciary. I think there is potential and I mentioned
things about education and about outreach. They have a very good
website but it does not come up immediately if you put in "Judicial
Office". There are things that individual judges do on their
own initiative in their local communities, but I think there is
scope for them to do more and I hope that they will do more in
the future. There is a question about resources and how many other
things they have got to do. It is important that somebody has
responsibility for projecting positive images of the judiciary.
If we can expect the newspapers to rather relish bad news stories
the question is who has the responsibility for providing a counterbalance
to that and I do not see, and when I wrote Paths to Justice
I felt this quite passionately, where the responsibility is for
providing those positive images and I am not sure that I see it
now. This kind of conversation in raising that issue is quite
helpful.
Q322 Lord Goodlad:
Are there any comparable organisations in other countries which
you know of that we might learn lessons from?
Professor Dame Hazel Genn: That is a good question.
I cannot immediately bring something to mind, but what I can tell
you is that there is a much greater depth of research in North
America and Canada on public attitudes to the judiciary, expectations
and experiences of the public in the justice system than we have
in this country, particularly in civil justice areas as well as
criminal.
Chairman: I have got a couple of quick
supplementaries on Lord Goodlad's question.
Q323 Baroness O'Cathain:
I was very interested in what you said about the Judicial Communications
Office website. We had evidence from them at our last session,
which I thought was absolutely stunning and the website is terrific.
Do you see a role for yourself, wearing your academic hat, of
trying to influence a government department like, for example,
the Department for Education that this website should be readily
available or, indeed, even as part of the curriculum because that
would in effect make the young people more conscious? Is there
something there that we could get which could break this whole
problem with the young?
Professor Dame Hazel Genn: I think there is
a lot that could be done. As I said, wearing my other hat, leading
this public legal education link empowerment task force, one of
the things that we are thinking about is precisely how do we manage
education, not just in schools but throughout, how do we manage
information and education about the justice system so that people
understand what it is there for and what the potential is and
also to make it less alien, to have a sense that it has a protective
function, not only a punitive function.
Q324 Lord Lyell of Markgate:
I thought you put your finger on it when you said, "We all
share responsibility to explain the system". Would you not
agree that if there are shortcomings, if senior ministers (as
happens from time to time) and middle ranking ministers pitch
in and get it wrong and put in strong criticisms, you can hardly
blame the press for being the principal cause of the problem.
Professor Dame Hazel Genn: I am not sure what
you are driving at.
Q325 Lord Lyell of Markgate:
I am driving at the criticisms by the Home Secretary and Vera
Baird in relation to the Sweeney case.
Professor Dame Hazel Genn: I think you are right.
I have looked at the discussions you had about tensions between
the judiciary and the executive. When ministers dive in and criticise
the judiciary for particular decisions, I personally do not find
that terribly helpful. I think it could have a corrosive effect
although, given what we have said about public views of politicians
as compared with the judiciary, if what has been criticised is
the judiciary what is seen as protection. In that case there was
a criticism about it being too soft, but in other cases you get
criticisms of the judiciary for insisting on protecting fundamental
rights and I do not think that the public would necessarily react
badly to that. I am straying away from what I would care to speculate
on. The point I want to make is that we all share the responsibility.
It matters to us all. We have to think about how we criticise
particular decisions.
Q326 Lord Woolf:
The matters to which you have referred are extremely important.
I do not want to gainsay that in any way. But is there any danger
of a system such as ours, which has grown up over the centuries,
getting too fixed on reforming, because it is said that is what
the public wants and, on the other hand, not reforming because
that is what the public wants. I and others holding similar offices
to my own have been very anxious to get rid of wigs, especially
in civil cases, but the Lord Chancellor went out on a consultation
on that and there was an overwhelming response by the public that
they wanted to keep wigs. Should that influence us? To take another
example, that of the Supreme Court. One of the arguments advanced
for the Supreme Court is one which you have echoed; namely, that
it is easier to understand if you have a Supreme Court. To what
extent should that influence us? Now the Attorney General's office,
which is, again, a great historic office, is very much under attack.
It is being said that the public do not understand how a minister
can wear two hats.
Professor Dame Hazel Genn: Certainly public
opinion is a factor that should be taken into account. Nobody
wants policy-making which is a knee-jerk reaction to immediate
events. We have all seen, at times, that people have jumped to
policy because of particular events. Sometimes what the public
wants, particularly when we do not especially know what the public
wants, is used as a way of justifying doing certain things because
there are political imperatives to do that. As far as the constitutional
reforms were concerned, there were a number of elements in that.
I have said before that I think the establishment of an independent
Judicial Appointments Commission is probably something that would
be very much in keeping with what the public would feel was appropriate.
I am not sure that there was necessarily a strong body of evidence
about what the average citizen thought about the kind of confusion
of roles as far as the Lord Chancellor is concerned or the confusion
over when is the House of Lords the Upper Chamber in Parliament
and when is the House of Lords the Appellant Judicial Committee
and all of that. I do not think you can just be making policy
on the basis of what the public does or does not think, although
it has to be a factor in that. There are other questions there
that I think are not for me.
Q327 Baroness O'Cathain:
It is far too early to make any assessment of the Judicial Appointments
Commission on public confidence and understanding in the system,
but how long do you think it will be before we can gauge the success?
What, if any, correlation is there between increasing public confidence
in the judiciary, which we have just noted, and a greater diversity
on the bench (in terms of sex, race and educational background)?
Professor Dame Hazel Genn: I am not here today
as a representative of the Judicial Appointments Commission. If
you are asking me as a Commissioner what the Judicial Appointments
Commission is there for, we know it is there to appoint judges
of the highest quality, on the basis of merit, from the widest
range of backgrounds. So long as the Judicial Appointments Commission
continues to appoint judges of the highest possible calibre—because,
as I said at the beginning, that is the most important thing—that
will help to support public confidence. The other thing we are
trying to do is to show that we have fair and open processes that
the public can perhaps better understand. I think that would help
to improve public confidence. We are also committed to encouraging
applicants from the widest range of backgrounds so long as they
are eligible. So long as we succeed in having processes that are
absolutely fair to all of those people who apply, then, inevitably,
people of a wider range of backgrounds will get to be appointed
to the judicial bench. I do not think there is a problem with
public confidence that needs improving but there is an interest
in seeing a more reflective judiciary, and that should happen,
inevitably, given our commitment to fair processes and encouraging
applications from a wide range of people.
Q328 Baroness O'Cathain:
Do you think it would help to achieve the objectives, the very
laudable objectives which you have set yourself and, indeed, that
have been set for you, if people knew more about you and knew
that you were not actually government appointees, as such, but
you were apolitical, independent—fiercely so. I know you
do not want to be in the spotlight on that but there is so much
anti-quango attitude going around that I think there might be
merit in considering putting out more about what the Judicial
Appointments Commission is and who are the members of it.
Professor Dame Hazel Genn: If you are saying
that from your perspective there needs to be more information,
I hear what you say. I think we have a very user-friendly website.
We are taking very seriously our outreach responsibility. Are
you talking about making ourselves better known to those who might
be eligible for judicial office or to the public in general?
Q329 Baroness O'Cathain:
I mean the latter, because I am sure that people who are eligible
for office know all about it because they would have as an objective
to try to become a judge. I do think the latter is important.
In fact, I would go so far as to say there are many people in
the Palaces of Westminster who do not know.
Professor Dame Hazel Genn: That is helpful feedback.
Thank you. I will take that back.
Q330 Chairman:
If, in the way you have described through the Judicial Appointments
Commission, we end up with what you rather interestingly call
a more "reflective" judiciary—which is probably
a better word than "representative"—do you believe
that would further increase confidence in the judiciary?
Professor Dame Hazel Genn: From the research
I have done—and here I am depending on the research I have
done—I would say there are sections of the public who would
feel more comfortable about the justice system if they walked
into courts that looked more diverse, that reflected more the
diversity of the society in which we live. That does not mean
to say that they do not trust the justice system but they would
feel more comfortable about that. From that point of view, that
would help to enhance confidence in certain sections in society.
Interestingly, there are some minority groups which have higher
levels of confidence in the judiciary than the white majority,
but there are sections, particularly in relation to the criminal
courts, which have some historic concerns and I think it would
probably help.
Q331 Lord Windlesham:
May I ask you whether you think that Parliament could or should
have any role in improving understanding of the judiciary and
the relationships between the judges and elected politicians?
Professor Dame Hazel Genn: Going back to my
shared responsibility point, I think we need to take seriously
the fact that we all have a responsibility. It is hard to think
in practical terms what we might do but this kind of conversation,
given the fact that it is to some extent publicised, is very helpful.
It helps to focus. You have had some very interesting evidence
given to you. You have had some extremely coherent and elegant
statements about the relationship between the judiciary and the
executive and about the constraints on the judiciary. There is
a lot of material in there that is not going to find its way particularly
into the public domain. It may sit on your website but the average
person is not going to find it, and so it may be that you could
think about what you might do with the material you have gathered
to use it. There is some really interesting material in those
transcripts that would be very helpful in explaining to the public
certain aspects of the relationship that they would not understand
at the moment.
Q332 Lord Windlesham:
It is encouraging that representation on the press benches is
considerably greater at the moment on this issue than it is on
many, many other matters which come before parliamentary select
committees. Thank you very much.
Professor Dame Hazel Genn: Thank you.
Chairman: Could I thank you on behalf of the
Committee. I think you wrote your own encomium in terms of "coherent"
and "eloquent". You have greatly assisted our work.
Thank you very much. If you have any subsequent thoughts, we would
be very pleased to have them. Thank you.
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