TUESDAY 17 MARCH 1998

THE RT. HON. LORD BINGHAM OF CORNHILL

  120. Out of about 96, is that right?

  (Lord Bingham of Cornhill) If you include the Court of Appeal it would be more than that.

  121. A very, very small number of women.

  (Lord Bingham of Cornhill) Yes.

  122. Ethnic minorities.

  (Lord Bingham of Cornhill) None in the High Court or above.

  123. There would not really be much of a difference, would there, between 40 years ago and today, even with background?

  (Lord Bingham of Cornhill) Possibly your assumption about background would be different from mine. If by background you mean people from rich, privileged backgrounds that is not the typical background of a High Court judge at all. They are usually, if you were to produce a stereotype, children of families with no inherited wealth or educational background but who have made a great effort and done well for them at the risk of the cost of some sacrifice. I should regard my own position as fairly typical. My father left school at 14, he became, as was the custom in those days, a pupil teacher, which meant that you taught during the day and then received a little tuition in the evening. He decided at the age of about 16 that he wanted to become a doctor. He had to start by learning Latin, which was necessary in those days and a bit of French which was necessary to get a school certificate. He qualified and then tried to do the best he could for his family. You could not paint that as a background of luxury and privilege. I suspect that it would be pretty typical of High Court judges who do not go to the grand schools on the whole; probably a lot of them go either to middle ranking fee paying schools or good local grammar schools.

  124. You would not consider the present position satisfactory, or perhaps you would.

  (Lord Bingham of Cornhill) No. Both Lord Chancellors with whom I have had anything to do on judicial appointments have been absolutely totally alert to the sort of points which underlie your questions, namely the desirability of increasing the number of female appointees and the number of members of ethnic minorities. Both of them were totally determined to do that wherever possible but they are also determined to make what seems to them at the moment of making the appointment the best possible appointment. The truth is, it has been said many times, but it remains a truth, that 30 years ago when today's judges were coming into the profession, there were very many fewer women and very many fewer representatives of the ethnic minorities so they are not there to appoint but they will be. It is a question of time. I happen to believe, as Lord Chancellors believe, that women are every bit as good as men and members of ethnic minorities can hold their own with their majority community competitors once they get the chance. They have to have the chance and it is a question of time.

  125. I wonder how many years before a Lord Chief Justice happens to be a woman.

  (Lord Bingham of Cornhill) I would think you might have to wait a very short time.

  126. We shall see. What seems somewhat of a mystery, perhaps you can give us some information, is how appointments are actually made. Obviously by the Lord Chancellor in his name but what sort of consultation? Are you involved yourself in being asked for advice?

  (Lord Bingham of Cornhill) Yes; in relation to the higher judiciary, yes.

  127. Are you involved with who should be appointed to the bench?

  (Lord Bingham of Cornhill) Yes. It is quite a protracted and quite a detailed process and it does not come out of a blue sky. A great deal of continuing consultation goes on to draw up a list of those who are regarded as potentially suitable appointees. There is another list of those who may be regarded in a year or two as possibly suitable appointees. These names are the subject of discussion years before there is any question of actually making an appointment. Then when there is a vacancy and an appointment falls to be made, clearly the discussion focuses on who ought to be appointed to fill that particular slot. That may depend on what the particular need is. If a vacancy is created by a specialist of a certain kind you may want another specialist of that kind. On the other hand, it may be that somebody entirely different is what is needed at that particular time. It is not a simple process but it is true to say that in respect of the higher judiciary—and I am talking about the higher judiciary because I am not involved in appointments to the circuit bench or the stipendiary magistracy.

  128. Some might say it is somewhat like a leading political party used to appoint the leader prior to the 1960s. I am wondering whether it could not all be brought more into the open—in your profession, not the political party—by having a different system, for example a judicial appointments commission.

  (Lord Bingham of Cornhill) I am of course alive to the arguments which have been advanced for that. I myself do not agree with them. I think that there is a great strength in the responsibility for making judicial appointments resting with an individual. Every Lord Chancellor knows that his reputation to a large extent stands or falls by the quality of the appointments he makes. The Lord Chancellors I have any personal knowledge of have taken this function very seriously. They have performed it with scrupulous objectivity and Lord Hailsham is on record as saying that this is in his judgement the most important task that a Lord Chancellor performs. That responsibility would be unfortunately diluted if it did not rest with one person who can take advice from anybody he likes and the more broad ranging the advice the better. Ours is a profession, like yours, in which we perform in front of each other. Most of our work is done under the critical eyes of our fellow practitioners, so people's qualities are known, just as you would have a shrewd judgement on the qualities and weaknesses and strengths of fellow members of the House of Commons.

  129. Known by word. It is passed from one to the other so in time the person's name comes within the framework. This is presumably how it is done.

  (Lord Bingham of Cornhill) They appear in front of judges repeatedly over a period. People after all have been practising for something usually between 20 and 30 years in front of their fellow practitioners, in front of judges, receiving advice from solicitors. There is a great pool of people who have knowledge of the strength and weaknesses of those people which become very apparent over a period usually.

  130. Are you quite satisfied with that?

  (Lord Bingham of Cornhill) The Lord Chancellor has made a step in the direction you, I assume, favour by inviting applications. Although I am not sure I should have done that had I been he, I think it is probably a valuable measure because it will identify those who seek judicial appointment and it will make sure that nobody is overlooked. If anybody feels they have claims and want this office then it is open to them to apply and go into the selection process. That must be fair.

  131. Your predecessor, Lord Taylor, tried to bring about some changes in court appearances as far as dress is concerned, wigs and the rest of it, and did not succeed, as I understand it. Are you of the same view?

  (Lord Bingham of Cornhill) I was initially entirely of the same view. In other words, I should have liked to get rid of all the regalia, except perhaps a gown or some band or something of that sort. I was persuaded by public consultation, such as it was, that the public did in fact attach considerable importance to the robing of criminal judges. The judges themselves, particularly outside London, attached importance to this because it gave them, they felt, a form of security, anonymity and protection so they could go out of court and the defendants they had just been trying did not recognise them. I altered my view to the extent that I did not favour any change, at any rate yet, in relation to criminal trials. I should still, if it rested with me, make the change in relation to civil proceedings and appellant proceedings. I felt when I was sitting in the commercial court trying cases about charter parties and bills of lading that it was really rather absurd that one was deciding cases between Greek owners and Norwegian charterers dressed in the costume one was when one was wanting to give the impression of being very up to the minute and with it. Even that met a measure of opposition and it is an idea whose time has not quite come.

  132. I was not aware that the public were asked.

  (Lord Bingham of Cornhill) Yes. I do not know that it was a very elaborate consultation but there was some. I do think that the British public, for reasons of television and everything, think of a judge as somebody with a wig on.

  133. The public are duly taken into consideration by the judiciary?

  (Lord Bingham of Cornhill) It was not a decision taken by the judiciary of course. It was the Lord Chancellor's.

  134. Yes, but clearly their views were expressed, as you have just told us. As regards the Home Secretary's decision over declaring membership of any freemason society, are you quite happy with that?

  (Lord Bingham of Cornhill) It is on the agenda to discuss at the Judge's Council meeting.

  135. When is that to take place?

  (Lord Bingham of Cornhill) I think it is in a week or ten days. At the end of that I will know roughly what our position is.

  136. Implacably opposed, I should think, would you not?

  (Lord Bingham of Cornhill) We had a position earlier in the year but there have been developments since then. We need to talk about it again and I cannot predict with confidence what the outcome will be.

  137. It will be compulsory with all new appointments, will it not, for membership to be declared?

  (Lord Bingham of Cornhill) I certainly understand that it is proposed that those seeking appointments will be asked.

  138. Existing judges will have to decide whether they are going to declare or not.

  (Lord Bingham of Cornhill) Unless United Grand Lodge is asked to release the names and does so.

  139. Would you be in favour of existing judges declaring that they are freemasons?

  (Lord Bingham of Cornhill) I of course understand entirely the reasoning which led this Committee to take the view it did. I entirely understand the Home Secretary's thinking on this subject.