TUESDAY 9 DECEMBER 2003

PETER HERBERT, OBA NSUGBE QC, AND GELAGA KING

  Q420 Keith Vaz: Mr Nsugbe, you would not want people to think that you did not become a QC because you were of sufficient merit?

  Mr Nsugbe: No, I would not.

  Q421 Keith Vaz: Exactly.

  Mr Nsugbe: I speak for myself. I am a member of the South-Eastern Circuit Managers" Committee. I am anxious that merit is kept to the forefront, and I am sure Peter is the same, but where I think the problems lie is where you are taking the merit from, and for me there are issues about encouraging in all four corners of the appointment constituency, which is barristers and solicitors, that you have really got to get to all four corners, and I think so far we have only managed to get to two out of the four. Therefore, for me you have got to get there much earlier, to people coming out of college, coming out of Bar school, coming out of law school. This means workshops, it means lecturing, it means mentoring and it means supporting those people who have got through the system so that they can play an important role in encouraging other people much, much earlier. I was fortunate. I was in a set of Chambers where we had plenty of information and there was a track record of appointments. There were lots of recorders and circuit judges, and Judge Brodrick was from our Chambers, so I got information pretty much after three or four years. I think the other issue that Peter is raising is the issue of access to work because if you do not get access to the quality work and you are not tested where it really matters, with responsibility, you will not get appointed because you will not be able to point to having been through the mill, so these are all key areas that I think before you get to the issue of how wide is the pool and where is the pool, we have got to get earlier to the difficulties.

  Mr King: Can I also add that I think the question of merit is not really a valid one because there are undoubtedly many very able candidates from the ethnic minorities and the two points which have been made are sound. Equally, of course there is the difficulty with soundings and because of the historical disadvantages that people from the ethnic minorities face, when it comes to taking soundings from High Court judges and others who hold suitable positions, very often members of the ethnic minorities have not had exposure to those who are consulted and obviously that operates to their disadvantage. I think that is going to be a very important factor that needs to be taken into account in the make-up of the commissioners because if what we are moving to is a system that simply appoints people who are currently consulted who do not necessarily have the issues of diversity at heart in the required way, then the problem, I think, will continue and these are all issues which would need to be addressed when these decisions are taken.

  Q422 Ross Cranston: I was going to ask you some questions about that, but can I just be clear in terms of the three of you as to where you stand on the Commission. Is the Commission going to make a difference? From what I understand you to say, by itself the Commission is not going to make any difference because all of these other factors are the key factors, such as encouraging people at a young age, mentoring them, putting them forward and so on. In other words, are you saying that it is a matter of indifference really whether you move from the Lord Chancellor's system to the Commission? Maybe we can hear from all three of you.

  Mr Nsugbe: So far as the Commission is concerned, I have not said it so far, but I do think it should be an appointing commission. I want to make it clear that that is the standpoint of the group. So far as credibility is concerned, we think it ought to be an independent commission that is put there to make appointments and it should do so. The point that Peter makes is an interesting one and I think that there is some force in a supervisory role for the Lord Chancellor if there are in effect reviews or appeals. To answer your question, Ross, the Commission may make a difference, and it depends, (a) how it is made up, and (b) whether diversity is placed at its heart in reality and how that is actually monitored, supervised and how it is actually policed. I think there is an argument for a statutory protection for independence of the judiciary where someone is tasked with that very point and also within that task there is, I think, an argument for a statutory role on diversity to make sure that these issues are being addressed by the Commission.

  Q423 Ross Cranston: I think you have a slightly different view, Mr Herbert.

  Mr Herbert: Not radically actually. There is a large degree of consensus about that between, I think, most minority people within the profession. Appointing commission, yes, with a measure of intervention by way of an appeal or review in the manner that I said initially. Yes, it can be effective, but the questions are: what powers will it have; will it be proactive; and will it set itself targets or be given targets which are realistic, achievable and which drive change? The Government is littered with commissions which are tick-box commissions which actually are set up, but yet fail to deliver, particularly on issues of equality and it is one of the hard issues you may deliver on in terms of equality for appointing women, but it has not so far, but race is the real issue and the real problem which the Lawrence Inquiry uncovered. Certainly just coming from the Metropolitan Police Authority down the road where we grapple with this issue still, they are no different, so you have to have liaison with the presiding judges on circuit, you have to have liaison with the President of the Law Society and Chairman of the Bar and the institutions, such as the Law Society and the training colleges for lawyers to make sure that the system works, in a sense, in a holistic way to achieve diversity and is not a stand-alone where people can say, "Well, we are doing everything we can, but it is their fault". That is what has happened far too often within the way in which the legal system is organised.

  Q424 Ross Cranston: I just want to ask Mr Nsugbe—targets?

  Mr Nsugbe: If they are realistic, yes, but I do not want targets to be confused with positive discrimination. I think targets and encouragement towards targets, yes, but positive discrimination, no, because so far as I am concerned, it would raise question marks about the credibility of an appointment if there was some suggestion that I was appointed just to make up a number.

  Q425 Ross Cranston: Just in terms of process, this question about secret soundings versus referees was raised, but can I also ask about the operation of assessment centres and whether that might be a way forward. So the process, do you have any views on that?

  Mr Herbert: Just on referees, there is far greater preference to referees as it would be open and transparent whereas a secret sounding simply is not by its very definition, and for the assessment centres again to take into account issues of diversity and experience and not an in-built disadvantage in terms of career development or progression. In a sense it is not a level playing field going in and, therefore, you have to, as I think one of the application forms did in recent years, have a page, and I think I filled out three pages, of "issues which may have disadvantaged you in your career to date", and I think there has to be provision for acknowledging that there may well be some in-built disadvantage to women and minorities so that even going into the assessment, you are not starting on a level playing field. That is not about merit, it is about opportunity, as Oba has said already.

  Q426 Ross Cranston: Are there any different views on that or any additional points?

  Mr King: I think we would agree with what Peter has just said.

  Q427 Mr Soley: I do want to explore this a bit deeper. I have a lot of sympathy with the view that says that we must not confuse merit with equal opportunities in effect. The suggestion that the ethnic minorities, established in Britain so long now, do not have the same merit is actually slightly insulting, it seems to me, and, therefore, the question is not the merit issue really. The question is: how do we make it easier for people from ethnic minorities to overcome some of the artificial hurdles that I think are sometimes referred to as "institutional racism"? I am not expert enough to define it, but I know of the problems. You have talked about targets as being useful and I am sympathetic to that, but what I am not sure about is if anyone has drawn up a way in which you could recommend, whether to this Committee or anyone else, what sort of targets we would be looking at, how you would set them and then the important issue of how you get people to achieve those targets, and the mentoring one struck me as being a particularly important one, education and so on. Is that in written form anywhere as to what should be done by the system to address this and is it in the sort of terms that I have described it or is it scattered across the general arguments about race and merit and so on?

  Mr Herbert: Well, it came up first in, and is an import from, the US. Just to make it quite clear, positive discrimination is unlawful here anyway, so it is a non-starter, whereas positive action is not and is allowed by the Race Relations Act 1976 and by the Race Relations Act 2000. Targets had originally been set by the Bar and the Law Society at 5% of all minority lawyers in chambers or solicitors" firms and that has been overtaken in a sense partly by events. The whole issue and argument for targets was put in writing and accepted by the Bar Council in 1991 and it was accepted a few years later in 1994 by the Law Society and both still have targets as a means of achieving diversity. There is nothing wrong with transposing those targets, being realistic and working them out and it may be different for different jurisdictions. In one of my jurisdiction, immigration and asylum, it is 14% achievement of targets and diversity. With district judges and circuit judges, it is less than 1% and with recorders I think it is slightly higher, so there could be different targets for different jurisdictions depending on the speed and the ability they have already shown to be achieving diversity already. They could be analogous to the targets being set within the Law Society and the Bar and can be agreed and reviewed as an ongoing process. How to achieve them? Mentoring has been mentioned already. You can have seminars for training and you can have fast-tracking of people you identify and you encourage and say, "You ought to achieve in your career these five goals", and that can be tested, but you have to put resources into it, you have to put commitment into it and that has to be regularly reviewed. It includes City firms and those with interests in the profession into doing that in partnership with government if you are serious about it.

  Q428 Mr Soley: Would you agree with that, Mr Nsugbe?

  Mr Nsugbe: Yes, I think I would. I think what I would add is that it should be part of the Commission's role to oversee this because what happens at the moment is that it is quite disparate in the sense that you get the Law Society doing its bit, the Bar Council doing its bit and there is some degree of cohesion, but it tends to be, I think, not as effective as it could be unless you put someone in supervising the whole thing and co-ordinating it and, as Peter has said, a holistic approach because it has to start from bottom to top, so I do agree and I particularly agree on the issue of targets, different targets for different areas of the judiciary. I cannot see setting the same targets, for example, for the High Court Bench or the Court of Appeal as you would for an immigration adjudicator. I certainly agree with that. On targets, I think they should be there as something that should be attained, but I am cautious about attaining them by means other than pure transparency and merit. When I say "merit", I mean drawing from areas and being imaginative about the way we appoint, so drawing from areas where hitherto we have not been as effective as we should be for appointing.

  Q429 Mr Soley: Such as?

  Mr Nsugbe: Well, I think as I said already. A judge earlier mentioned the Minority Lawyers" Conference. Now, the Minority Lawyers" Conference has been going now for the last three or four years. That was an initiative by black and Asian lawyers starting that conference up and it is something that we do in effect to have a check on ourselves, see where we are, and it is discussing important issues and, to be fair, the Lord Chancellor has come virtually every time he has been invited to this conference, but it is that kind of thing. There needs to be far more support for these sorts of initiative. It only happens once a year, though I think we did miss a year and in the end it was once every two years, but there is a good deal of hostility out there for areas which have hitherto been neglected. I will give you another example: the South-Eastern Circuit itself, of which we are a sub-committee, I think really only in the last two or three years has taken a serious interest in minority lawyers and thereby this committee was set up and we do receive some support, though we would like more obviously. It seems to me that it is quite late and the intent does not always stay, so there does have to be a sustained commitment to this and particular support. Someone has got to be in charge of it and someone has got to be accountable so that in due course if, for example, the Commission were reporting to Parliament every year, producing an annual report, subjecting itself to an all-Party committee, someone really has got to be accountable and so far I do not think anyone really has been. It is quite easy for the Law Society to say, "No, it's the Bar's fault", and for the Bar to say, "No, no, it's the Lord Chancellor's fault", so in the end you go round in circles.

  Q430 Mr Soley: Mr Nsgube, you indicated you had some help in the Chambers you were in initially.

  Mr Nsugbe: Yes.

  Q431 Mr Soley: Is it your experience that people from ethnic minorities make good progress if they land in a sympathetic training background, if you like, but if they do not, they are more likely to run into the hurdles? Is that right?

  Mr Nsugbe: There is absolutely no doubt about that. I do not think I have been in these sorts of issues as long as Peter, to be fair, and I am not sure if many people have, but I was a member of the Bar Council's Race Relations Committee 12 years ago. I am a member of the Judicial Studies Board, and my remit with that is ETAC, the Equal Treatment Advisory Committee, training on equal treatment issues, so it is not too bad and I regularly go to the Bar school to do training, particularly for ethnic minority students, so I know what the issues are. There is an issue, and I alluded to it earlier, over where you establish a prominence for minority lawyers and then there is some question mark over their achievement and that, to me, is a side reference to the silk issue, but I tell you now that is a personal issue for me. I think questioning credibility and suddenly saying, "Well, it may be withdrawn", you have a real problem with impact there. I have been to schools and I have explained how people may look at these issues, people may progress, so there are enormous issues there for me. As to the obstacles and hurdles, I think it needs committed encouragement, it needs co-ordination, it needs commitment and everyone needs to be interested in it, so it is not up until fairly recently that we have had the Chairman of the Bar and the more senior figures coming to these conferences and asking for a platform to speak. I am not one to say there has not been improvement because there certainly has and I think the past Lord Chancellor, Lord Irvine, actually should be given quite a lot of credit for that because he was very committed to it. However, I think what I would describe as the somewhat hasty abolition of the position has left a potential vacuum in this very area and someone has got to take it up.

  Q432 Mr Soley: Mr Chairman, I am not sure if it would not be helpful to us if we actually had a very short paper on what both parties think needs to be done. I am not asking for a long description of the problem, but bullet points of what needs to be done.

  Mr Nsugbe: We would be more than happy to do so.

  Chairman: Perhaps you could supplement what you have said to us in that way.

  Q433 Mrs Cryer: I just wonder what all of you would think if you saw an interview about to take place for a judicial appointment and one candidate was a young woman who had been to a comprehensive school, had a fairly strong Yorkshire accent and had been to a poly or what had been a poly, and the other candidate was a young black man who had been to an independent school, had been to one of the better universities that we keep hearing about and had a fairly sort of middle England, what we would call in Yorkshire, "posh" accent. Who do you think would be discriminated against in that interview and what do you think should be done? Mr Nsugbe, you said that you were not in favour of positive discrimination, so I wonder what you would think about how those two candidates would get on and how they would be dealt with by the appointments people interviewing them and also what could be done perhaps to address the problems that we are talking about by way of positive discrimination?

  Mr Herbert: If I can throw the question back, whom does the appointments panel consist of?

  Q434 Mrs Cryer: Well, what does an appointments panel consist of now?

  Mr Herbert: What is the identity of the appointments panel itself?

  Chairman: Presumably we are thinking of the new Judicial Appointments Commission with whatever composition it has.

  Q435 Mrs Cryer: No, actually I am thinking more about what is happening now.

  Mr Nsugbe: What would happen now is that I think you would have a judge chairing it. You would have someone from the DCA chairing the panel. You would have a judge and you would have a lay person interviewing you. That is certainly as I remember it. I am not sure that is not a trick question! I think that you would have certainly to look at the issue of disadvantage. You are suggesting that potentially the woman has been as equally disadvantaged as the black male. The black male is obviously black and that is apparent and the woman has a background which does not readily identify with a number of judges, for example. I think you would have to look at the issue of background, but at the end of the day you would have to test it on merit and you would have to test it by transparent, clear criteria and whichever candidate was the better on the transparent, clear criteria, whether it be in an assessment centre where you have a slightly more objective way, I suspect, of choosing judges or whether it be on the criteria that the panel are supposed to deal with when they are interviewing, I would still stick to the guiding principle which has to be: which one would be the better judge? If it is a draw and you really cannot make your mind up about it, appoint them both. I do not think that that to me would be a problem area and I think certainly I would have in mind the issue of background, but I do have a difficulty, I must confess, as to how we would judge who is the more disadvantaged and I think there would be a pretty difficult problem there.

  Mr Herbert: This exact question was posed twelve years ago by the Bar Council, so it is not a new one, and we answered it in the same way as Oba has done. However, we said this: that in terms of positive action, your answer is quite clear in that if you look at the statistics of the organisation in terms of employment and you see you have an under-representation, a dramatic under-representation, of either women or minorities and they are both absolutely equal on merit, you appoint the person who is least represented. That is set out in employment law and it is quite appropriate to do that and that was what the Bar Council decided to do twelve years ago when this question came up, so we would not see it as being any different now.

  Q436 Mrs Cryer: I was just trying to sort out what you said, though I do not think it was you personally, but what the Society for Black Lawyers said about substantial racism and substantial cronyism. In my view, they are more or less the same actually, but I was just trying to get to the nub of it.

  Mr Herbert: There is no perfect system, but ways you reduce the risks of that to a minimum are the ones that we are seeking to get to, and the ways you also seek to get the best people for the job, and at the moment we are not getting, which is no disrespect to any of my colleagues, including myself, the best people for the job. That is a very deep question for a democracy to tackle, but tackle it must do. Certainly one of the things we have been doing with the Metropolitan Police Authority is to have diversion schemes for young children and I went to a conference with young children on leadership programmes in Hackney. They have got to be able to look at a prospectus of Westminster University and say, "I can become a judge, like Oba. I can do this". Now, at the moment that is so far out of their sight as to be unrecognisable and it should not be, so the appointments made now will stay with us for 20/30 years and, therefore, it is extremely imperative and I cannot urge enough that ten years after these issues were discussed and after the Benson Committee identified this about 34 years ago in 1979 when they said exactly what is being said here now, dramatic under-representation, it should not take another 34 years to achieve that diversity in judge appointments. My belief is that the work of the JSB, and I was on the Committee preceding Oba, led to dramatic changes in the training of the judiciary and it was race that was the driver, but it led to a far better culture of judicial fairness and objectivity and I think that you will, through this, in achieving diversity, have a far better judiciary than you currently have and it is obviously improving all the time.

  Q437 Peter Bottomley: It seems to me that having started off with an indication of the generational change, looking at people who are going into and coming out of legal training, that will help to make a difference, but we probably, as a committee, beyond this particular sort of throwing up of the Lord Chancellor's job up in the air, ought perhaps to think of trying once a year to look to see what is happening in terms of the pools of confidence and competence and fairness. I will not put it as a question, but I assume you would agree with that.

  Mr Nsugbe: Yes, that is very helpful and critical, I think, because the confidence, as everybody knows, is peculiarly low amongst ethnic minorities who can be the people obviously who are the users of the justice system, though not as low as it was five years ago fought by Professor Hood. The last time he went into this issue and did a report in the Midlands on sentencing and the disparity between sentences received by black offenders for the same offence, he was not allowed to speak to judges then, but his findings were devastating. His most recent report which came out this year saw improvements with the issue of confidence because he followed people who had been sentenced, interviewed them after their sentencing downstairs and asked the black people whether they felt that their sentence had anything to do with issues of discrimination and racism and then looked at the difference between confidence with the white defendant who had been sentenced. The gap is closing, but I do not want there to be any suggestion that there should be complacency which is, I think, your point about the importance of assessing fairness and confidence on a regular basis.

  Mr Herbert: Just one very quick final point is that pools of excellence are sitting there. CPS lawyers, 30% of CPS lawyers are from minorities, whereas less than 4% of people in the Government Legal Service are from minorities, so why that disparity? The reality is that it is not the difference in merit or the lack of it, but the difference in who is making the appointments and who sees that merit, but it should be the Government Legal Service and others that you look to for at least some of your judicial appointments.

  Chairman: Gentlemen, thank you very much indeed for your evidence this morning.