Unrevised transcript of evidence taken before. The Select Committee on the Constitution JUDICIAL APPOINTMENTS PROCESS WEDNESDAY 26 OCTOBER 2011

Transcription

1 Unrevised transcript of evidence taken before The Select Committee on the Constitution Inquiry on JUDICIAL APPOINTMENTS PROCESS Evidence Session No. 6. Heard in Public. Questions WEDNESDAY 26 OCTOBER am Witnesses: Peter Lodder QC, John Wotton and Roger Smith USE OF THE TRANSCRIPT 1. This is an uncorrected transcript of evidence taken in public and webcast on 2. Any public use of, or reference to, the contents should make clear that neither Members nor witnesses have had the opportunity to correct the record. If in doubt as to the propriety of using the transcript, please contact the Clerk of the Committee. 3. Members and witnesses are asked to send corrections to the Clerk of the Committee within 7 days of receipt.

2 1 Members present Baroness Jay of Paddington (Chairman) Lord Crickhowell Lord Hart of Chilton Lord Irvine of Lairg Lord Norton of Louth Lord Renton of Mount Harry Lord Rodgers of Quarry Bank Lord Shaw of Northstead Examination of Witnesses Witnesses: Peter Lodder QC, Chairman of the Bar, Bar Council, John Wotton, President, Law Society of England and Wales, and Roger Smith, Director, JUSTICE. Q193 The Chairman: Good morning and thank you very much for coming today to help us with this inquiry. It is being recorded, although not televised, so please be kind enough to identify yourselves for the record when you first speak; that would be very helpful. We are particularly grateful to the Bar Council and the Law Society for the written evidence that we received before the session. It has been helpful in formulating our ideas about what will be useful for us to discuss with you. You will be aware that we have said in a note of guidance that, this being the Constitution Committee, we are primarily concerned with the constitutional aspects of judicial appointments in so far as one can identify those as a separate agenda. We are less concerned with the administration of how judges are appointed. As we have about an hour, it is probably best if we begin immediately with some questions. I start by simply asking all three of you how you think the role of the judiciary has evolved in recent years. From the perspective of those of us outside the legal system, there often seems to be a more prominent role for judges in areas of public life, which would not previously have been expected. Do you think that this has in any way affected the

3 2 constitutional relationship between the judiciary and Parliament? Mr Lodder, would you be happy to start? Peter Lodder: I would and thank you very much. I am Peter Lodder, the Chairman of the Bar Council. We feel that, in some sense, the role has not evolved in any particular way. Judges continue to do what they are employed to do. However, what has happened is that there is a far greater focus on what they do and a much greater focus on how they discharge their role. Clearly we live in an age in which the activities of courts come under much greater public scrutiny than they used to, and there is far more public interest in the character of judges. We do not disagree with that, although we are concerned that sometimes that scrutiny goes beyond what is necessary for a proper assessment of how the judge discharges his or her function. We recognise that, in discharging their roles, judges are now much more sensitive to the communities over which they adjudicate, whether in terms of the immediate community and the actions that concern it or how they represent the community. Therefore, we welcome this inquiry to look at how judges may be seen by society as whole to be reflective of society as a whole. Although we recognise that, in large part and at the senior end, the judiciary is principally white and male, we see that that is changing in the way that it has evolved in recent years, and we encourage that. We are also encouraged by the increased independence from political influence in the appointment of the judiciary; that is to be commended. I suppose that what it comes to is that it has changed and is changing gradually, but it is changing in a way that we think is to be commended. Q194 The Chairman: We will come to the questions of gradualism and how rapidly you would want to promote change, or see that it could be promoted, subsequently. Perhaps I could get the others reflections. Mr Smith, would you like to comment from the JUSTICE point of view?

4 3 Roger Smith: I would point to three things that have changed over the past 30 or 40 years. The first is the extension of the judiciary downwards into the tribunal structure. When I started in practice, the people who were tribunal chairmen and so on were often not lawyers but they are now firmly within the judicial structure. That has implications for how those roles can work within the system. Clearly, one of the major phenomena of the past 20 or 30 years has been the extension of judicial review and the public law role of the judiciary. The third element is the creation of the Supreme Court, which may have more of a symbolic role and a role in relation to perception, but is a major constitutional change none the less. John Wotton: I am John Wotton, president of the Law Society of England and Wales. I have very little to add to the comprehensive comments that Peter Lodder and Roger Smith have made. I would just add that, on the whole, the willingness of the judiciary, particularly the senior judiciary, to speak in public on matters that will help the public at large to understand the courts system and how it operates, while remaining quite meticulously outside areas of public controversy, is to be welcomed. Q195 The Chairman: It does not seem to have stayed outside it in some of the judiciary s evidence to us last week but that is another matter. Given what you say about this progression in the perception and role of the judiciary, do you think the balance between the judiciary, Parliament and the executive is about right now? John Wotton: Yes, I do. The principles of judicial review are an essential element of our society and essential in order for citizens to assert and defend their rights. I think that they are applied by the judges in an objective and meticulous way. The growth of judicial review inevitably increases the areas for possible disagreement between the judiciary, the government and Parliament, particularly over compliance with our international obligations, but that comes with the judicial territory. Peter Lodder: I would agree with that.

5 4 Roger Smith: I think that the balance is basically right. We have a Supreme Court and a domestic judiciary that accept the supremacy of Parliament. The body is as independent as you can get, I would have thought. In his person and his judgment, Lord Bingham represents a towering figure. He has dominated the past few years and is a good symbol and representative of the best of the judicial system. You could not have been at the Tory party conference or watched it on television, hearing the Home Secretary misrepresenting a case about cats, without feeling uneasy about the extent to which politicians were sensitively negotiating their relationship with the judiciary. In a way, the balance between the judiciary and the executive is probably all right, with the exception that politicians need to catch up with that. Secondly, what is beginning to emerge is the issue of the executive and the legislature. It is arguable, and I would argue it, that the judiciary would be much less involved in some of these public law cases if parliamentary scrutiny of legislation going through Parliament was more rigorous. Q196 The Chairman: The scrutiny of legislation is one thing but what about the scrutiny of appointments? Would there be a parliamentary role there, potentially? Peter Lodder: We would be unhappy about that. It takes the appointment of judges into the political sphere, even if that is political with a small p. The changes that have been made over recent years, particularly taking the Lord Chancellor s role away from combining being the head of the judiciary with being a Cabinet Minister, have been good steps. We fear that bringing the appointment of judges back into the parliamentary sphere potentially politicises those appointments. We are in favour of a system more akin to the one that currently applies. You may be leading on to the question of shortlists and their publication. We would not be happy for shortlists to be published. We do not see it as a positive step, nor do we

6 5 see where the benefit lies, save in provoking some probably less well informed debate in newspapers. The Chairman: Mr Smith, do you agree with that, given what you have said about parliamentary scrutiny in general? Roger Smith: I would have no problem with it. Indeed, it would encourage greater parliamentary scrutiny of the judiciary as a whole and judicial organisation in the courts. I would have no objection to beefing up the Justice Committee or to having a Joint Committee on the judiciary, which is one thing that we suggested when the Constitutional Reform Bill was going through. I watched, as I think you probably still can, the confirmation hearings of Sonia Sotomayor in the US. It was not an instructive experience, except in showing how a bright lawyer can, frankly, stonewall for hours on end. Even in a jurisdiction where you could argue seriously that the views of the candidate on such things as abortion are relevant which I do not think they are here what you got was a very competent lawyer just playing a dead bat to a whole line of questioning. It went down the avenue of attacking her for once having taught international law because that was an implicit threat to the supremacy of American law. I do not think that that is edifying, or that Parliament would want to appoint the judiciary. It is difficult to see what power these things would have. It would be wholly undesirable to have open, or indeed closed, hearings of Parliament, either pre- or post- qualification. I do not see the point. The Chairman: Can we now turn to the system as it exists and the appointments process? Q197 Lord Crickhowell: Before that, let me take up this point. No doubt our witnesses read the interesting exchange between former Lord Chancellors that took place the other day and will have taken on board Jack Straw's very strong views that Parliament and the executive, which have a clear interest in the way the system works, should somehow be

7 6 involved. He was pretty tentative, and I do not think that there was broad agreement on going down the road of having pre and post appointment hearings, but he suggested that there should perhaps be slightly stronger representation of parliamentarians, or some involvement, in the selection process. He feels that this is not an issue that is going to go away and that there has to be some greater connection between Parliament, which has a legitimate interest, and the present system. What would your comments be on the case that he advanced to this Committee? Roger Smith: It does not alter my view that it would be wrong for parliamentarians to get involved in any way or appear to be involved in any way in the appointments process. That is just a quagmire into which no one would want to go. As I say, I think that where Parliament has a role is in scrutinising the operation of the judiciary as a whole and the operation of the courts. That is the way it should go: beef up the Justice Committee; have a joint committee on the judiciary; have the senior presidents and so on talking about how they see the development of their courts and what is going on. That is quite legitimate, but being involved in individual appointments, which is unedifying when you watch the United States, will not help. I think that Jack Straw is wrong in relation to that. The Chairman: Now, Mr Wotton, you did not comment before. Do you agree with that? John Wotton: I do, Lord Chairman. The proper role for the Parliament and executive is to establish a suitably qualified independent commission to oversee and make judicial appointments. I think that that degree of independence from politics should tend to increase public confidence in the judicial appointments process and the courts system. The Chairman: So, Lord Crickhowell, do you want to turn to the existing system? Q198 Lord Crickhowell: That takes us rather neatly to the question. This has not come up before, but it was raised in the paper that we have received from the Legal Services Committee of the Bar Council, which criticises the present arrangements on the grounds

8 7 that it comes up first in paragraph 10 of the submission the written entry tests are, for one reason or another, excluding very strong candidates who everyone thinks should get through that process. Some very strong points are made about the initial written testing and the ways that candidates are short-listed. The suggestion is that somehow, for reasons which are elaborated on a bit, very good candidates are failing to emerge and this is causing considerable concern and dissatisfaction. This is the first time that this issue has come before this Committee and it would be helpful to have the views of our witnesses on that point. Peter Lodder: There are a number of background observations to make. The first is that the views of the Legal Services Committee are the views of one committee and there are other views. You will have seen, I hope, the submissions made by the Equality and Diversity Committee among others. There is a deal of controversy about the fact that there is a sift process, but there has to be some sort of process by which the large number of applicants that there now are for a limited number of places are in some way sorted so that there is not a requirement to interview every single one of them. The examinational test is conducted on a blind basis so that whoever marks the papers has absolutely no idea of the identity, whether in terms of gender or ethnicity, of the applicant. It is a process designed to be as fair as possible. There are a number of criticisms of the essence of the test as to whether it favours one type of practitioner over another and matters of that sort. I do not go into that. But I think that it is correct to observe that it has to be a test in which merit, and merit only, is reflected. It is restricted in the sense that some people do well in some types of test and others do not. Although I have heard many examples of individuals who one would have expected to get through it with ease but did not, the fact is that they did not. One then has to look at the essence of the test itself to see if it is genuinely exploring those things that are required of the candidates.

9 8 I have raised this with the Judicial Appointments Commission, which has considered various types of test. It had a different form of test before that was not legally based and was universally criticised for failing to look at the qualities necessary for the post. The commission has moved now to a law-based test, and that has been criticised as being overly legalistic, so I have little sympathy. All that said, the problem is that however you examine an individual candidate, some will do better than others. But it seems to us that there must be some system. If that system is on its face fair and this one appears to be substantially a fair one then, although I respect the views of the Legal Services Committee, I also have to take on board the view of the Equality and Diversity Committee, which is that a sift is essential. I am inclined to support that view. Of course, it is right to observe that the fact that you apply and fail the test on one occasion does not stop you applying at a later time. Q199 Lord Shaw of Northstead: In your article, you say that apparently, some outstanding candidates a figure too great to be merely random are not passing the written entry tests. That seems to be a serious fault. Is the written test a final test on its own? Surely, it should be linked with a personal interview? Apparently, that cannot happen because there are too many applicants. Peter Lodder: That is correct. Lord Shaw of Northstead: So what is the alternative? Taking a written test on its own, I have seen in other spheres myself, is quite inadequate on certain occasions and good men are missed. Peter Lodder: I do not disagree with that, which is why I focused in my answer on whether the test actually achieves what it sets out to do. Quite by chance, later this morning I am meeting with the chief executive of the Judicial Appointments Commission to discuss with him the test in the recent competition. I agree that there are candidates who are of the

10 9 highest quality who did not pass the test and one would have expected that they would do so. I do not think that there is a perfect system here. Certainly, there is not one that I am aware of. The difficulty is that there are many, many more applicants now than ever there were before. That is for a number of reasons. First and foremost, I think it is the success of the initiatives that the professions have pursued in encouraging applicants from a wide range. Also, to be frank, it is a feature of the economy. There are now many practitioners who do not see their futures as remaining in practice and are keen to have the safety net of a judicial position. That has increased the competition to the extent that I cannot see that it would be practicable to have both interview and test. For example, in the application for Queen s Counsel, you are not guaranteed an interview. There is a process of sift through referees and then there is a calling forward for interview of those who get through that stage. I am not aware of any competition on this sort of scale where you are guaranteed an interview as well as taking the test. Lord Shaw of Northstead: Does the system put people off even applying? Peter Lodder: Funnily enough, I am not sure. Yesterday morning I spent some time with a number of people who failed to pass the test in the recent competition. They are not happy about various aspects of it, but they took the view that if the test is a fair one and they fail, so be it. The Chairman: I am intrigued by your idea and description of the judicial appointment being a safety net for members of the legal profession. I think it is the first time that we have thought of it in that way. Q200 Lord Renton of Mount Harry: That rather makes my point, Lord Chairman. I note that in the paper that we have received from the Legal Services Committee of the Bar Council, in answer to the question whether the appointments process is sufficiently transparent and accountable the response was simply No. On the other hand, the Law

11 10 Society said: In our view the JAC has succeeded in establishing a reputation for operating an open, transparent and accountable selection processes. There seems to be a considerable difference between you two on this point. Peter Lodder: That is why I made reference to the response of our Equality and Diversity Committee, which is also of the Bar Council. This is one of those situations where you will get a different opinion from different people. Lord Renton of Mount Harry: Why? Peter Lodder: Because they have different perspectives on what the system should seek to achieve. Those in the Equality and Diversity Committee feel that there is now a greater appearance of fairness in how the system operates. The Legal Services Committee clearly has a different view. I cannot reconcile those two committees, even though, technically speaking, they come under the supervision of the Bar Council. These are the view of interested parties. Lord Renton of Mount Harry: Perhaps Mr Wotton would like to say a word on this. John Wotton: Thank you. This raises a number of very important points. From the Law Society s perspective, we do not share the Bar Council s specific concern about the written test. We do have a concern about the relatively small number of solicitors who are appointed as judges, particularly at the higher levels of the judiciary. We see our role as being to work harder to prepare our members for the application process and to make sure that people are aware about how it operates so that they can apply at the right sort of time and at the right sort of way and understand the nature of the selection process and how they will have to perform. Hopefully, by doing that and by devoting a good deal of that effort to, for example, the minority ethnic communities among our members, we may encourage a somewhat more diverse pool of candidates for judicial appointment.

12 11 The Chairman: I think that we will come back to the particular issue of solicitors, but Lord Irvine wanted to comment on this. Q201 Lord Irvine of Lairg: I was wondering whether a possible explanation for the failure rate of the written test on the part of practitioners who are highly regarded in the profession may be that those who are complaining about the test may be applying a different standard from those who set the written test. The standard of the critics may well be to ask, Is X an excellent advocate and very good in court? That is the appropriate test for appointment as Queen s Counsel, but it is not the appropriate test for becoming a judge, because aptitude for judging in the broadest sense gives rise to a different set of issues than the issue of skill as an advocate. Might that be part of the explanation? Peter Lodder: I am sure that it is part of the explanation but, having spoken to a wide range of practitioners who have failed the test, I know that any number of reasons are advanced as to why the examiners failed to observe the qualities of the person applying. Dealing with the specifics of the most recent competition, first, as I have already indicated, the previous competition was one which was more aptitude based in its examination, although it was universally criticised. Those who went into the competition were told that it would not be law based, but in fact substantially it was. I do not know whether you have seen the paper, but it deals with aspects of character and the admission of bad character as a substantial part of the test. Those who sat it were given material to read and allowed 15 minutes in which to read it; some of them were familiar with that material, because they are criminal practitioners, while some of them were wholly unfamiliar with it because it had never come into their sphere of practice. There was a restriction placed on what you might put into your answers, which was that you were limited to the material that was there. So what a number of criminal practitioners did was to draw on their knowledge of the bad character provisions and answered the questions and gave directions that included their own material rather than

13 12 that which was confined to the paper. They were penalised for so doing, because the test was based solely on the material that was made available. So there are a number of wrinkles in this situation. Lord Irvine of Lairg: It does not sound to me a very good question. Q202 The Chairman: That raises the broader question that we have been wrestling with from our perspective, which I am sure you have all wrestled with many times, about the definition of merit, particularly in relation to some written test of this kind. Would you like to comment on that from a slightly external perspective? Roger Smith: Just on the issue of the written test, I think that the Law Society was fair enough and right in its presentation to say that there is probably no alternative to a combination of an interview and written test. You cannot interview everybody; you have to have a written test. There may be problems with the written test. It may also be that those who feel that they should be passing the written test with flying colours do not perhaps put quite the attention into it that those who feel less certain of their success do. That is a variable. The issue of merit seems to me to rest on whether merit is a summit or a plateau. You go through an exercise to decide who gets a job. Do you pick the best, or can you identify those who could do it adequately. The kind of language that I use domestically would be the word appointable. Who is appointable and who is the best? If it is a summit, as it is generally taken to be, you have to appoint the person who comes out top on whatever test you are applying. If it is a plateau and you are saying that for a judge at this level you need this range of skills, knowledge and so on, it is possible that other criteria may play a part in the decision-making process. Q203 The Chairman: Which do you think would be the most useful in achieving some of the broader ambitions that have already been described about diversity et cetera?

14 13 Roger Smith: I think that you have to go for a plateau. I think if we pull it back, it is not acceptable in this age to have a Supreme Court that has only one woman and no one from a visible ethnic minority. This is not an acceptable result. Lord Renton of Mount Harry: I did not quite hear that. Roger Smith: I do not think that it is acceptable to have a Supreme Court that has Baroness Hale as the only woman on it and no one from a visible ethnic minority. We are shamed by a picture of our Supreme Court when placed against the equivalents in Canada and the United States. It shows us up. We have to do something about that. We have been applying the merit test in terms of our understanding of a summit, and we have changed very much. It seems to me that we have to put some weight into ensuring the continuing quality of our Supreme Court, which I think is genuinely as good as any supreme court with a small s in that position in my 40 years of practice. You have to keep its quality but increase its diversity. The answer to that has to be the notion that merit is a plateau and we can therefore allow ourselves, or rather it may be possible, to make choices between who gets on that plateau and therefore who is appointed. Q204 Lord Irvine of Lairg: But that is fundamentally to alter the way in which the merit test is understood. The merit test is understood as being choosing the best person among the applicants for the vacancy in question, having regard to the requirements of the vacancy. A plateau test and I am bound to say that I have never heard of it before Roger Smith: I just made it up Lord Irvine of Lairg: I had that feeling. The Chairman: I found it very illuminating Lord Irvine of Lairg: The fact that it has been mentioned for the first time is not to its discredit, of course; but what the plateau test entails is no different from qualifying. In other words, sufficient quality for the job in hand is required, but it is totally incompatible with the

15 14 merit test, which means it is not good enough just to qualify, but the best among the applicants must prevail. Lord Renton of Mount Harry: Is not best a very difficult word to define? The Chairman: That is clearly demonstrated by the written test we have been talking about. Roger Smith: In an ideal world, you are safest going for the best candidate, despite all the problems in defining that. O that we were in a world where we could agree that that is what we should do. On the other hand, we are sitting here with a Supreme Court that has one woman on it, and a Court of Appeal that is not representative either. I think that that is a problem. Lord Irvine of Lairg: Of course, there are many women in our other courts. Roger Smith: Yes, but the percentage is not 50, and I think that the visual impact of our Supreme Court is a problem and we have to see how we address that. Q205 Lord Irvine of Lairg: Are you essentially arguing that diversity should be a component in merit and that the two concepts are not distinct? Roger Smith: No, I think that appointments should be made on merit. We come down to verbal definitions. Appointments should be made on merit and no one should get a post that they are unable to carry out. You can call that qualification. I think that we are fencing in terms of words. I think that there is a minimum level of quality you need to be a Court of Appeal judge, and at that level you should be appointed on merit. Within and beyond that, I think that you can take into account various issues. The statute takes into account the positions of Scotland and Northern Ireland to ensure that they are represented, and I think that you could take into account, say, gender in the composition of the court.

16 15 Lord Irvine of Lairg: If you are at the level far beneath the Supreme Court, but where most people experience the law, such as in the district court, county court or the Crown Court Roger Smith: And tribunals. Lord Irvine of Lairg: And tribunals, of course. Do you think that a litigant who is disappointed with the outcome of a case and says, This judge was absolutely awful, would be interested in an explanation that the ultimate appointment was made on the basis of race, gender or quota, or do you think that ordinary people want a good judge? Roger Smith: I think that ordinary people want a good judge and they have every right to expect a good judge and should never get a bad one; but I also think that the lower down we go the more the nature of who is the judge is important. It seems to me very unfortunate if you have tribunal after tribunal with three members, all of whom are white men, particularly if that does not reflect the applicants coming through. What you want is a system in which people have confidence. That confidence first comes from, frankly, whether people have won or not; secondly, it comes from objectively whether a decent job has been done; and, thirdly, it comes from a perception of justice the notion in the criminal system of, It s a fair cop, guv. This is what you want, even if you lost. Q206 The Chairman: We can get away from the different use of semantics in relation to best, merits and so on. If we look, for example, at the Equality Act 2010, I would be very interested in the comments of all three of you on whether, if there were a tie-break something that is in the Act whereby if there were two candidates of equal merit, in order to appoint one candidate, you should use the Equality Act provision that the underrepresented group should be appointed. That is in statute. Do you think that that is relevant to what we are discussing?

17 16 John Wotton: I think that the judiciary in some respects reflects the legal profession as a whole, and there is considerable diversity and little evidence of discrimination on grounds of gender or ethnicity at the point of entry. However, the further one goes up the tree, the less diverse the group appears to become. It is important that one understands why it is that women or black and ethnic minority lawyers are not advancing, and it may be that some aspects of the judicial appointments process in terms of the type of appointment available whether it be full-time or part-time at the point in someone s career when it become available, are not best designed to achieve the greatest diversity. In relation to the tie-break provision, my understanding is that the Judicial Appointments Commission is able to apply the tie-break provision and decided that it would do so. The previous chair, Baroness Prashar, said it would happen very rarely, and the Law Society makes no criticism of its decision on that. Peter Lodder: May I agree but make a few particular observations? I share the view that it would be a very rare circumstance in which the tie-break is truly applied. I think that we will rarely have two candidates who are matched almost exactly in terms of each of their qualities. The Chairman: Even if you apply the plateau description of merit? Peter Lodder: I do not think it matters, because what you are saying is that you come to a particular level and there are two people who are the same, so it may be that two of them have reached the summit. The Chairman: You are quite right. Peter Lodder: Let me take the example that Lord Irvine was using of where people most come into contact with the courts, which is at the district judge and circuit judge levels. I have available to me some statistics from the judicial task force. One can see a growing level of representation in terms of equality of gender and ethnicity in those courts. Interestingly,

18 17 in each of those courts, when one looks at the percentages for the part-time, as against the full-time, judiciary, in every case the part-time judiciary is more reflective of diversity than the full-time. That, I would suggest, is an indicator of where we are moving. I think that we have to recognise that this is a feature of chronology. This is a feature of what has happened over the years. There is a good basis for saying that there is incremental change here. Whether that is fast enough to satisfy the plateau-ists is another matter. However, as Lord Irvine observed, there are now a number of Court of Appeal judges, and you will be aware of indeed, the Lord Chief Justice drew your attention to the recent appointment of Mr Justice Singh. When he was interviewed, he observed that at the higher level, the judiciary is not yet reflective of a diverse society, in the way that the Queen s Bench Division now is, but that stems from an earlier time in society, not from unfairness in our system. That is an important factor to bear in mind, because I agree with Lord Irvine that you must always ensure that the person appointed is worthy of the position and should be the best. Lord Hart of Chilton: I would like to ask some questions about diversity and I particularly want to address a question to Mr Wotton. When I was a solicitor and a recruiting partner for a big City firm, and when I was a special adviser to two Lord Chancellors, I was sent out into the City firms to see whether I could kindle greater enthusiasm among the solicitors profession to embrace a judicial career for members of their profession. I have to say that three or four firms welcomed the opportunity to discuss the matter, and a large number of others did not even want to talk about it. The justification for not wanting to talk about it was that the firms themselves saw a solicitor s career as not leading to judicial preferment. They were assets that had been trained at great expense to produce skilful solicitors. That was what they wanted to keep and they did not want to release assets for any other purpose than their own. There is a general agreement that there should be greater diversity, and there is general agreement that it is not happening quickly enough. You represent a body

19 18 with a very large pool of legal resource from whom one would expect more candidates more successful candidates to come for judicial preferment. I would like to know from you what is actually happening here. Why is it that people are not coming forward in the greater numbers that one would expect? What are you as the leader of your profession doing about encouraging more and more people to apply? John Wotton: Thank you. I am very conscious that both the Lord Chief Justice and the chair of the Judicial Appointments Commission are very keen to see more able and experienced solicitors applying for judicial office, particularly at the more senior levels. There is no shortage of solicitor applicants at the more junior levels. The role of the Law Society in that can be to facilitate a dialogue between the judiciary, the JAC and law firms in order to see if there are ways of overcoming the barriers to becoming a judge that experienced lawyers in larger firms find. The barriers are not insuperable, of course, as Lord Collins s career demonstrates. But it does need a great deal of commitment on the part of the individual to leave their firm in mid-career or compromise their ability to contribute fully to its activities. Ultimately, it will be for individuals to decide whether they see moving into a judicial career as something that they wish to do, rather than remaining within the structure of legal practice, as many solicitors and barristers choose to do. I would like to see more good solicitors come through. I will be looking for ways of having a dialogue with firms, particularly larger firms and perhaps those that are thinking more creatively about ways to overcome the loss of some of their best women rather earlier in their careers than one might wish. If it is possible to achieve the necessary flexibility for a woman in mid-career to work on a flexible basis, one would think that the same would apply to the flexibility necessary for that person to become a recorder, for example. Q207 Lord Hart of Chilton: But there is no doubt that within the solicitors profession, as you reach your 50s senior management is always looking for people to leave the

20 19 partnership in order to make way for younger members to join the band of brothers or sisters. I do not understand why in that situation more people are not being encouraged to take a career path change for which many of them are ideally suited. They do not necessarily have the advocacy experience, but as we know, that does not ultimately matter for the qualities of being a judge. Lord Collins himself said that the emphasis on advocacy is overstated and that there are many solicitors who could cope with huge caseloads and manage material. I am puzzled as to why there are not sufficient numbers coming forward, and I am not absolutely clear what steps the Law Society has taken in recent years to spur people. What action has it taken, as distinct from making general comments? John Wotton: First of all, I entirely agree that the skills that are developed by senior solicitors are extremely relevant to judicial office, particularly the skills of case management and of chairing and managing meetings and dialogues. Many people could make a great contribution. If a solicitor takes no steps to pursue a judicial career until he or she is in their 50s, that is perhaps rather late to start. That is the view of the senior judiciary as well: one needs to dip one's toe in the water rather earlier. At that point, the individual might feel that their contribution to public life could more conveniently be made through non-judicial public bodies, on which solicitors appear quite frequently the Competition Commission is an example. Indeed, one might say that someone who has practised in a large City firm for many years is probably better suited to that sort of tribunal than to the judiciary. The Law Society cannot, as it were, instruct people; it can only make the opportunities more well known, and have a dialogue with managing partners and others in law firms to see if there could be more encouragement made available, and to increase the opportunities for the judiciary and the JAC to see if they can get firms to change their attitudes. Q208 Lord Irvine of Lairg: Do you have a policy as yet to follow the proactive role that you have just outlined?

21 20 John Wotton: Yes. Our policy is to encourage our members to prepare themselves for judicial and other public office, and to assist them in every way. Our solicitor judges are immensely supportive and wish to play a role in helping. The Chairman: And that is an explicit policy, not just an understanding between the members of the higher management of the Law Society, as it were? Lord Irvine of Lairg: Is it published, for example? John Wotton: I am not sure. I take it for granted that it is. Roger Smith: Yes it is. A lot of work has gone on including roadshows to encourage members to apply for judicial posts. Q209 Lord Renton of Mount Harry: I confess that I am puzzled by this part of our discussion. I am not a lawyer and have never been involved in the law. As I have said before, I have always taken the view that when people want to stay as solicitors, it is basically because they are better paid than judges. That is a very important point and it is perfectly fair to say so. Going back to the question of career judiciaries, would it be appropriate and helpful if lawyers were appointed to junior judicial roles at a much earlier stage of their careers than traditionally has been the case? I know that there is something like this in Canada. Would that help the situation? Roger Smith: I am very keen on this. I think that it is the answer in the longer term to getting a more diverse judiciary. The notion is that, around the age of between 30 and 40, the lower judicial appointments that are now available as a consequence of the extension of the judiciary downwards provide a new career path which we should explicitly develop, so that you can come in at tribunal level in your 30s and expect to be in the Supreme Court in your 60s. That opens up the pool. I think that it would be very attractive to women to have a salaried part-time post in a tribunal structure. You can test people out and bring people through. That should be done as a matter of conscious policy. An additional role that should

22 21 be given to the Judicial Appointments Commission is positively to foster diversity in that way. Lord Renton of Mount Harry: So they would be very helpful when a woman wanted to go away for three months, have a baby and come back she could do that? Roger Smith: I would have thought that, generally, the judiciary is likely to be an easier place to do that than in practice, either at the Bar or as a solicitor. It might be very attractive to people, including to somebody coming back, or to a wider range of people who would not be so scared, for whom it would not seem so presumptuous, to begin their career in the judiciary at the bottom level. I really think that that is a long-term answer that has to be positively developed. Q210 The Chairman: Does the Bar Council or the Law Society have a view on this, collectively or individually? Peter Lodder: Clearly, we are in favour of a structure that encourages those who will make good judges to become judges. If it can be facilitated by them starting their careers at an earlier stage or in a lower tribunal, that is something to be welcomed, but I think one has to temper that with a realism. The realism in this context is that, if someone has a particular skill and they wish to develop that skill within a practice which specialises, they are not going to be able to come out of that area of specialisation in practice and occasionally sit in a lower tribunal which is intellectually inferior to what they do in practice and has no relevance to what they do in practice. It is very difficult to see how they could pursue that. I think that there is a considerable benefit to the judiciary from drawing on those who have the experience of practice and have an awareness of the issues that crop up in particular courts and tribunals. I think there is an important knowledge base to recognise there. The Chairman: Practice in court specifically?

23 22 Peter Lodder: Practice in court or practice in an area of law. I do not think that it has necessarily to be court based. If one looks, for example, at the commercial court, you do need someone who has an awareness of the relevant law. The Chairman: Mr Wotton, do you have a view on this? John Wotton: Yes, I think that the concept of a judicial career and the ability for those who join the judiciary at a junior level, if they perform well, to then move up through the tiers, ultimately to the High Court and beyond, is very important. I think that that would make a significant contribution to the diversity of the judiciary at the higher levels. I would, though, be reluctant to see a lot of people coming into the judiciary, even at a junior level, without a significant experience of practice and, indeed, of life. The fact that all our judges have significant legal and life experiences is on the whole a great advantage and I would not like to see a continental system adopted. The Chairman: In which, as it has been described to us, you would have a Civil Service of judges. That has been one of the phrases used to us. Roger Smith: That is a very prejudicial description. If you were to have a French person giving evidence to you, I think they would rise to their feet in outrage at that description of their judiciary. Q211 Lord Shaw of Northstead: Roughly, what sort of age would you regard as appropriate for switching? You say that there must be experience in law firms. We talk about taking leave to have children. I would have thought that child-bearing age would have passed by the time people were reaching this decision. Am I wrong? John Wotton: Not necessarily. One can qualify as a solicitor at the age of 24 or so Lord Shaw of Northstead: But then you need to have experience John Wotton: By then, five or seven years experience is probably quite sufficient to make a start in a tribunal or a lower court, I suggest.

24 23 Peter Lodder: Typically, applicants for recordership commence at about the age of 35. I think one also needs to recognise that, if you bring the age down, you are simply bringing people into that realm where they are considering having children. You are just adding to their difficulties if they also have to consider judicial appointment as well. The Chairman: An area that has concerned us in previous hearings I think we should allow Mr Smith to expand on what he was saying about the French reaction to my point about the Civil Service and Lord Rodgers has been particularly concerned about is, however they are appointed, how do you, as it were, judge the performance of judges at whatever level? I think you have used the word monitor. Q212 Lord Rodgers of Quarry Bank: What I have in mind is to look at the success of the system, whatever it may be. Obviously, one of the measures appears to be that of diversity associated with merit. Presumably in any appointments system, people get it wrong. They go to a great deal of trouble to choose the best people but, as it turns out, they are not very good. How is the success of those who are appointed to be measured, given that you really need to know how successful they are after they have been appointed to discover whether the system is a good one? John Wotton: Perhaps I could comment briefly. I tend to feel that a system of appraisal of judges at all levels is probably desirable. The advantage of such a system, which is well known in most other walks of life, is to enable people to recognise aspects in which they are not performing as well as they might and take steps to improve through either self-awareness, training or a combination of the two. It could be a useful tool in improving judicial performance and could also provide a basis for easier promotion through the tiers of the judiciary.

25 24 Q213 Lord Rodgers of Quarry Bank: Is there a way in which you monitor this? Who monitors the judges once they are appointed to draw a conclusion about whether those decisions were the right ones? John Wotton: Clearly, steps would have to be taken in the relevant court or tribunal to make that work and they would need to be taken by the president or other leader of the tribunal concerned. There would need to be an element of peer review. There could perhaps be a wider feed into an appraisal process from court staff or from those who have appeared in the court as advocates or litigators. I do not think that is very different from the appraisal of the performance of senior executives, for example. Peter Lodder: I do not think that there is a formal procedure in the sense that a resident judge at a given court centre writes an appraisal of each of the judges who are there. But there is quite an effective procedure in that, if a judge makes a mistake and there is an error in the way that that judge has summed up the law in a Crown Court, for example, there is a procedure for appeal. That means, therefore, that that judge s judgment is reviewed by the Court of Appeal. If it is found to be wanting, that will be expressed in the judgment. There is a procedure by which, if a judge consistently makes mistakes, that will probably be reflected by an interview with the Lord Chief Justice. I am not familiar with the process personally, but I have heard of it. A judge s performance is assessed by those means; for example, how they relate to those who appear before them, whether they are courteous or not matters of that sort. There are other procedures whereby these things are raised with more senior judges. For example, if a judge is being difficult in such a respect, the circuit leaders will raise it with a presiding judge and there will be an informal process by which these things are addressed. If you are looking to have a more public process, there is no such process, at least not one that I am aware of. One would have to approach that with a great deal of caution, in my view.

26 25 It is important, though, to recognise the following. In the job that I do, I travel extensively to other jurisdictions, often to sell the values of our system. Consistently indeed, without exception our judiciary is praised for its high standard and integrity. It is important when one is having examination of this sort to bear in mind that you are not saying, We have a bad judiciary. How can we improve it? In general terms, I imagine what you are finding is that we have an excellent judiciary but we have concerns over some aspects of diversity and recruitment in making sure that the process is as good as it possibly could be. Although, to come back to where we started, I do not think there is a public and formal procedure for dealing with those issues, but such procedures as there are appear from my perspective to work fairly well. The Chairman: I am sure that we should have Mr Smith s comments but does Lord Rodgers want to come back? Q214 Lord Rodgers of Quarry Bank: I am not quite satisfied. I would very much like to hear what Mr Smith has to say on that. It seems to me that every head of profession says that the architects, doctors or whatever they may be are absolutely marvellous but that some may fall slightly short, and if that happens you tick them off from time to time. It is even more the case that judges feel they are rather special. I understood you to imply that it was very dangerous to be critical of a judge and risked undermining the whole system. That is a rather complacent view. Peter Lodder: I would not want you to think that I am being complacent about it. The point I was seeking to make is that, by and large, the process does not appear to appoint bad judges. I am not saying that that is universally the case, but in general it appears to be. There are informal procedures that cater for instances when they occur. My caution is that if we have a public process by which a complaint is dealt with, a disciplinary process, as it were,