UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 48-iii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

CONSTITUTIONAL AFFAIRS COMMITTEE

Tuesday 9 December 2003

RT HON LORD CULLEN OF WHITEKIRK and RT HON SIR ROBERT CARSWELL

HH JUDGE MICHAEL BRODRICK, HH JUDGE SHAUN LYONS,

MR PETER HERBERT, MR OBA NSUGBE QC and MR GELAGA KING

Evidence heard in Public Questions 335 - 437

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Constitutional Affairs Committee

on Tuesday 9 December 2003

Members present

Mr A J Beith, in the Chair

Peter Bottomley

Ross Cranston

Mrs Ann Cryer

Mr Jim Cunningham

Mr Hilton Dawson

Mr Clive Soley

Keith Vaz

Dr Alan Whitehead

________________

Witnesses: RT HON LORD CULLEN OF WHITEKIRK, Lord Justice General of Scotland and Lord President of the Court of Session, and RT HON SIR ROBERT CARSWELL, Lord Chief Justice of Northern Ireland, examined.

Chairman: Lord Cullen, Sir Robert, welcome. We are particularly pleased to have the heads of judiciary in Scotland and Northern Ireland respectively. Lord Cullen, of course, we have met before when we were carrying out our inquiry into the judicial appointments in Scotland before the Government announced its plans for England and Wales. Could we just go through our normal procedure of declaring interests around the table?

Ross Cranston: I am a barrister and recorder.

Keith Vaz: I am a non-practising barrister but my wife holds a judicial appointment.

Peter Bottomley: I probably ought to say that my wife is a headhunter.

Chairman: Thank you. What we thought we might do is start by looking at the Supreme Court issue and initially looking at it in general terms before coming on to those aspects which are particular to Scotland and Northern Ireland or, indeed, in a few cases to both of them.

335. Mr Soley: Could I address my comments to you, Lord Cullen, first because I understand from your evidence that you are not wildly enthusiastic about these changes.

Lord Cullen of Whitekirk: That is right.

336. Mr Soley: I formed the impression that you are saying it is basically only because of the image that we are thinking of changing it rather than the reality; the reality is, in your view, largely satisfactory. How does that leave you in relation to Article 6 of the European Convention, and also what is your view about the general problem that we do not change at a pace we say, and that change is sometimes forced upon you?

Lord Cullen of Whitekirk: I am not aware of any challenge, nor do I think it is likely there will be a challenge. There seems to be no question of the law lords being otherwise than completely independent of the executive, and so far as the legislature is concerned, if the well-informed observer knows about the distance that the law lords observe between them and the legislative aspects of the House of Lords, I do not think in those circumstances there is a suspicion of any lack of independence. That is the way I see it, but perhaps they should speak for themselves.

337. Mr Soley: But you do suggest that the reason for doing it is perception?

Lord Cullen of Whitekirk: Yes, that is correct. It seems to me on practical grounds to be not a necessary step that it is being advocated, because it is better from the point of view of perception. No doubt if the slate was completely clean and we had a fresh start we would not invent what we have, but we have what we have and it works.

338. Mr Soley: But if the perception is the cause, if you like, and if the problem is that events are moving and we would not design it if we were starting again, is there not a case for changing at your own pace rather than waiting for change to be pushed upon you?

Lord Cullen of Whitekirk: I do not dispute there is a case - of course there is a case - but there is also a case for not doing it. Perception is important, you are quite right, because independence does not mean simply actual independence but also perception of independence, that is perfectly right, but I do not think on balance the case is made.

339. Mr Soley: And do you think there are any advantages to the system that is being proposed? If I was to put to you "What are the advantages of doing it?", what would you say? Would you say there are none?

Lord Cullen of Whitekirk: Apart from the perception point we have just discussed I would say not a great deal. It all depends what kind of Supreme Court we are talking about. We seem to be talking about one which is simply taking over lock, stock and barrel the existing functions of the Appellate Committee and perhaps also the Judicial Committee of the Privy Council, so what is happening is to happen somewhere else in a different atmosphere and I do not quite see how that takes you any further. There may be opportunities possibly for making pronouncements which would be of use to the whole of the United Kingdom, but one has to remember that the existing civil jurisdiction as far as Scotland is concerned is that the Appellate Committee functions as a Scottish court with a wall, as it were, between it and its functioning as an English court.

Chairman: We are going to come to that in a bit more detail in a moment.

340. Mr Soley: Thank you for flagging that up. Sir Robert, I am not quite clear where you stand on this. Are you broadly in favour or against?

Sir Robert Carswell: I cannot speak for my colleagues because it is not a topic we discussed as it was not part of the consultation paper, and I suspect that their views might be divided. My own view I think tends towards that of Lord Cullen; it is a matter of perception. There is no doubt, I think, that the quality of the work of the Lords has been highly regarded for many, many years and their independence and integrity is certainly unchallenged. It is a question of perception and the possibility of a challenge under Article 6, though frankly I think it would be a brave person who would undertake it!

341. Mr Soley: So you are both confident that there would not be any challenge to that at all, but again it goes back to perception, does it not, because we do get as politicians questions from particularly the emerging Eastern European countries about why we have a rather muddled approach at times, on separation of powers. I know that is really the Lord Chancellor, but there is an element of overlap, is there not?

Sir Robert Carswell: Well, the whole of our constitution is a little that way. I am inclined to Lord Cullen's view that if it is functioning satisfactorily you might make more trouble from changing it just because of perception. If it were not functioning satisfactorily I would have no hesitation in supporting a change to have a court that was put on the right basis, but I have some difficulty in seeing that the case for changing just because of that is made out. I might be less positive than Lord Cullen and certainly less positive than Lord Nicholls has reported in council, but I would hesitate myself, if I may put it that way.

342. Mr Soley: Do you think people in the street would have a perception of your function now, or would it be better if it was a Supreme Court, given that that term is perhaps better understood by people?

Sir Robert Carswell: In the taverns of Tipperary the talk does be of little else!

343. Mr Soley: I would have to say not in Acton! Nevertheless there is a perception of justice and of judicial structure, and "Supreme Court" has a precise meaning in people's minds, even if it is not so precise in actual terms. They tend to understand that.

Sir Robert Carswell: That I think is as far as the benefit is likely to go - tidiness and people's idea of their understanding. Advantages in practical terms are likely to be minimal and there may be problems not appreciated such as Lord Cullen has dealt with in his response.

Lord Cullen of Whitekirk: You say everybody knows what a Supreme Court is but if you look at yesterday's article by Lord Rees-Mogg in The Times he immediately starts thinking about the American model. If you say "Supreme Court" to a man in the street he may say, "Oh, yes, just like America". Now, that is not what is proposed, as I understand it, so it is not as simple as all that.

344. Mr Soley: Finally, you have played a distinguished role in a number of public inquiries. Do you think members of the Supreme Court could do that job, or do you think that would have to revert to someone else?

Lord Cullen of Whitekirk: It depends whether they were allowed to do so by the President of the Supreme Court. It has become a regular practice for judges at various levels to be asked to do these inquiries. I do not see any reason in principle why not, no. None at all.

345. Mr Soley: Although it must be said in the 19th century Parliament was very good at doing its own inquiries.

Lord Cullen of Whitekirk: It was only because of difficulties over that very thing that inquiries by judges and others began to become more common. I think it was the Marconi episode in the 1920s which gave rise to the Tribunals of Inquiry Act. Because of the difficulties then it was necessary to take the matter out of the political hotbed which tended to surround parliamentary inquiries at that time.

346. Peter Bottomley: Many of us were astounded that the Government could come up with proposals to reorganise our court of final appeals without consulting the outgoing Lord Chancellor, the incoming Lord Chancellor, the present members of the Judicial Committee of the Lords, and I think we would do better to discuss this in terms of a court of final appeal and leave the title to be chosen afterwards for exactly the Rees-Mogg reasons. Clive Soley was talking about perceptions. What would be the minimal changes that might meet the perception point?

Lord Cullen of Whitekirk: I am not sure what you mean by "minimal changes".

347. Peter Bottomley: Largely that the Lord Chancellor should not be able to sit as a law lord. The minimal change is the Lord Chancellor saying "I will not sit as a law lord" rather than throwing the whole system in the air. People argue that having the law lords meeting in the House of Lords is somehow the executive interfering, forgetting of course that Parliament is not the executive and that any arrangements are likely to be more expensive. Could they be cheaper than the present arrangements?

Lord Cullen of Whitekirk: I cannot say because I do not sit as a Lord of Appeal but my impression is that it would be cheaper to leave things as they are than to create something freestanding outside, and there also is the advantage at the moment, as I understand it, that the Appellate Committee is funded through the House of Lords whereas if it is to be exported to some other place it would then be funded by the Department of Constitutional Affairs, hence you get a closer association or greater association with the executive which did not previously exist. Now that itself raises a problem of independence.

348. Peter Bottomley: And without commenting on the personal qualities or merits of the present serving Lord Chancellor, would either of you take the view that you would prefer to have the judiciary so to speak led by a middle-ranking minister who might want preferment, or would you prefer the present system we have had of having someone who is so grand that they do not expect to go on to another job after being Lord Chancellor?

Lord Cullen of Whitekirk: I will leave Sir Robert to deal with that question because the Lord Chancellor has no sway in Scotland.

Sir Robert Carswell: That is known in rugby terms as a hospital pass! I certainly have had experience of working with three Lord Chancellors --

349. Chairman: Who all happen to be Scots?

Sir Robert Carswell: Yes, and it was wholly favourable. I found that they did support the judiciary extremely well and that they had the standing - I leave out the present one because he is in a slightly different position but Lords Irvine and Mackay had the standing - to be able to put their case, if there was a case to be made, very effectively. To have a person in the position of the Lord Chancellor with the independence and the standing rather than, as Mr Bottomley said, a politician who may be looking for other posts in due course - I could see that the latter would give less support and independence to the judicial point of view because judicial independence is so crucial, not because it is terribly important that they be left alone to do their own thing but because independence is a necessary condition of impartiality.

350. Ross Cranston: I want to come back to this public inquiries point because there is a purist view, which I do not share, that judges should not conduct public inquiries and I guess the difference with a parliamentary inquiry is we might do policy but judges can do factual inquiries that we cannot do, but I think the argument is first a practical argument - that judges simply do not have time if they are on the Supreme Court - but also there is a constitutional argument and I think it is the view taken, say, by the Victorians in the common law world and possibly shared that it is just wrong for judges to become involved outside judicial functions. As I say, I do not share that but it is an argument that if you take this purist Article 6 view of the world - which I think is totally wrong but if you take that view - it might well be said it is wrong for judges to participate in public inquiries.

Lord Cullen of Whitekirk: It is certainly the case that in some other countries it would be unthinkable for a judge to take a public inquiry but there never seems to be a problem here. What has happened over the decades is governments have used judicial independence and judicial talent in order to cope with matters that could not be resolved in some other way.

351. Ross Cranston: I think the argument might sometimes be that politicians are trying to avoid issues or kick them into the long grass or whatever, and are exploiting the judiciary.

Lord Cullen of Whitekirk: It is an out-tray way of dealing with matters but it is important also to bear in mind that you do not have inquiries unless there is some cause for public concern, and thus it is that judges who are otherwise liable to be treated as elderly and out of date suddenly become popular for this sort of purpose.

Mr Soley: Young and in date!

352. Chairman: Turning, Lord Cullen, to the Scottish aspects of this, are the Government's proposals compatible with the Act of Union, Article 19 and the claim of right and, if not, what would have to be done to them to make them compatible?

Lord Cullen of Whitekirk: I venture this matter in my response really in order to make the point that this aspect ought to be considered by the Government. Before the Act of Union there is the Claim of Right, which was a Scottish provision at the time when the monarchy was returning to Scotland in 1689 and there was then a declaration by the Scottish Parliament as to the right of subjects to protest for remede of law to the King and Parliament and that is the ancestor, so far as Scotland is concerned, of the hearing of civil appeals from the Court of Session to the House of Lords. The Act of Union was silent on the question of appeal from the Court of Session or, indeed, the High Court of Justiciary, but it was later, much later, interpreted in such a way as to indicate that the Court of Session and its decisions should be subject to review whereas the High Court, the criminal court, would sit its decisions to be regarded as final and conclusive, so what you have, firstly, is an interpretation of the Act of Union. The second point is that, until now, it has been recognised that there are some situations, not easy to define, where certain elements in our constitution may be unalterable - that is a possible view. It arises from time to time, most recently in the case involving Lord Gray's Motion where certain members of the Committee for Privileges reserved their view on that matter. So however strange it may seem there is an argument that Parliament might not be able to alter or undo certain elements of a constitutional nature. That is a sketch of the argument: whether it is good or not I do not propose to advance, but simply say it is there to be considered.

353. Chairman: Are you proposing any way in which the Government's proposals might be modified to avoid collision with that argument?

Lord Cullen of Whitekirk: I am inclined to think that it may very well be that so far as civil appeals are concerned there is not a problem, but it is simply something that ought to be looked at. Therefore my answer to that is probably that no alteration is, in fact, required.

354. Chairman: Do you agree that legislative competence so far as any changes to leave to appeal and things of that kind are concerned does not lie with Westminster under the devolution settlement but with the Scottish Parliament?

Lord Cullen of Whitekirk: That is quite a difficult matter. If you look at the Scotland Act you will find that what is reserved is the continued existence of the Court of Session and the High Court of Justiciary. The way that the Scotland Act is constructed certain matters are specifically reserved: the rest is not, and therefore it appears on the face of it that matters other than the continued existence of these courts is a matter for the Scottish Parliament. Nobody is entirely clear as to that being the case but that seems to be the position, in which case there seems to be a role here for the Scottish Parliament. Now I would hope that the matter was not, so to speak, nodded through in Scotland but given serious consideration, but that is the position, as I understand it.

355. Chairman: Lord Hope expressed the view that the Scottish Parliament would need time to deal with this matter before it proceeded at Westminster?

Lord Cullen of Whitekirk: I would agree with that and the consultation paper, whereas it makes clear what the executive's attitude is and we have seen the executive's response since then, so far as I know as yet there has not been a considered discussion in the Scottish Parliament.

356. Chairman: There is a phrase which I think you may have challenged already which the Government use in respect of constitutional issues where they say that the establishment of the new court "accordingly gives us the opportunity to restore a single apex to the United Kingdom's judicial system where all the constitutional issues can be considered". That is in the consultation paper. Is it your view that, leaving aside the devolution issues, there ever was or should be a single apex which combines the judicial systems of England and Scotland?

Lord Cullen of Whitekirk: I do not think that is correct. The position until now is that the Appellate Committee functions sometimes as an English court and sometimes as a Scottish court, and I say that because what is binding in England is not binding in Scotland. You have two completely separate jurisdictions so that whatever decision the House of Lords reaches in regard to a civil matter it does not bind in Scotland, and vice versa, so you really have two apices rather than one apex and, if the position is that that is to be taken over by the Supreme Court, it will have those two high points, whereas the paper tends to talk as if this is the opportunity for the United Kingdom court. Well, I say that is obscuring the point: that you have two separate jurisdictions each with its own head happening to be administered under one device, namely the Appellate Committee. That is what we have: it is a result of the separate growth of two legal systems, and it is preserved, of course, by the Act of Union.

357. Chairman: Do you think that the Scotsman who holds the position of Lord Chancellor in England that is driving this reform has now perhaps become more familiar with this point?

Lord Cullen of Whitekirk: I certainly have had the opportunity of making it to him and I have also pointed out that there is nothing in the consultation paper that would prevent this Supreme Court in an English case determining what Scots law was or vice versa, and I think for the protection of Scots law that needs to be in any legislation for a Supreme Court, as well as more general provisions safeguarding the separate existence and entity of Scots law.

358. Ross Cranston: Just quickly, if one started with a blank sheet one could look, say, at jurisdictions like Canada, where the Supreme Court operates and still preserves a quite distinct judicial system in Quebec, quite different in terms of the civil law background and in terms of the substance of the law. Starting with a blank sheet, therefore, do you think you would take a different view?

Lord Cullen of Whitekirk: I think it would not be impossible for a Supreme Court here to preserve that clear distinction, and if one was setting up something now and had not got the benefit of decades and hundreds of years' operation of the House of Lords and the Appellate Committee, yes, it could be done but all I am saying is that the safeguards are not spelled out and I think the safeguards are essential. The present consultation paper seems never to come to terms with any of that, which is rather worrying.

359. Dr Whitehead: Could we perhaps move to who would like to be on the new Supreme Court? Do you have any views about the convention of the numbers of judges from Scotland who might be appointed to the Supreme Court? Do you believe that the convention should simply continue, or do you believe there should be rather more places available?

Lord Cullen of Whitekirk: The proposition is that the number of twelve should be carried over from the Appellate Committee. One of the points that we did consider was whether and to what extent the new Supreme Court should rely on ad hoc members brought in from the various jurisdictions, and we tended to the view that it should, so far as possible, operate within its permanent establishment. Now, that cannot be done without increasing the establishment and that brings in its train the question of whether it should remain as two members from Scotland or whether it should be three. It is really an incidental effect of that. If one compares that with the present arrangement under which the Judicial Committee of the Privy Council can call on Scotsmen ad hoc to sit in, it is a very flexible arrangement and quite a beneficial arrangement from the point of view of making sure that you have adequate Scottish representation when required. These are broadly my views. Now, I appreciate that to increase the number of Scots may not necessarily be wholly popular and it also creates difficulties in Scotland because at the moment to have two distinguished Scottish judges serving in England and for the most part looking at English cases is in a sense bad enough, but to take three away is a greater drain so there are pluses and minuses here. It is a difficult matter and it may be at the end of the day one of the arguments for leaving matters as they are.

360. Dr Whitehead: Do you think there is an additional impetus given to perhaps the argument that there might be three Scottish members because of the transferring, or possible transferring, of devolved matters to the Supreme Court?

Lord Cullen of Whitekirk: If the devolution issues are to be taken by the Supreme Court that, of course, underlines the need for adequate Scottish representation on the bench and desirably, if you are sitting in a panel of five, there should be at least three Scotsmen there. That can be done, of course, by bringing in ad hoc representatives from Scotland, and we have a clear example of what is possible at the moment where Privy Councillors can be drafted in to the Judicial Committee when required, and there could be various ways that would reproduce that by saying that members of the Inner House, who are ten in number, could be drawn upon when required. But the point I simply make is about the way in which the Supreme Court is to operate - that our tendency was to favour the view that it should, so far as possible, operate on its permanent membership.

361. Dr Whitehead: Sir Robert, the convention is currently that there is one law lord from Northern Ireland. Do you think, bearing in mind the perhaps fluctuating basis of Northern Ireland cases that might come before the Supreme Court, there is a case for an ad hoc arrangement as far as Northern Ireland members are concerned?

Sir Robert Carswell: My colleagues welcomed the suggestion by the Judges Council of England and Wales that there should be one member regularly. I would just qualify that in one way because it is conceivable that there may be times when we could not spare somebody of the quality required. We are a small jurisdiction; you need to have a Lord Chief Justice who can cope with the quality of work, and if you have a law lord as well then there are two people. Most times that is quite possible. There may be times where, for example, the person likely to be appointed would be the serving Lord Chief Justice and there would not be somebody ready to come through, and there might have to be a gap of two or three years until that righted itself. If it were left in such a way that it did not become a matter of jurisdiction, then I think we could certainly staff a place in the House of Lords and, as I say, our judiciary would work on that. There was an expedient at one time when the late Lord Lowrie was Lord Chief Justice; for the last eight or nine years of his tenure of office he was a peer, he retained the office of Lord Chief Justice of Northern Ireland but sat from time to time in the Lords and, I understand, made quite a useful contribution, and then he became a permanent law lord later. So that is one possible way of dealing with it if there are shortages of manpower.

362. Dr Whitehead: Lord Cullen, you mentioned the issue of, as it were, Scottish judges almost permanently being away from home. Maybe the Supreme Court should sit in devolved territories from time to time in order to allow them perhaps to get home for breakfast?

Lord Cullen of Whitekirk: That sounds a very attractive proposition but whether it is attractive financially is another matter. One perhaps could find a building in which they could sit but there may be staff questions to do with library and other resources. I do not wish to offer a view on this point because I think it is quite tricky. It sounds in principle a very good idea and it does bring justice, as it were, back to the territory from which the case comes, but there may be practical problems about it and I quite appreciate that.

363. Dr Whitehead: Do you think a Supreme Court should have full corporate independence in terms of managing its own money, pay, rations and affairs entirely independently?

Lord Cullen of Whitekirk: That is the view we have expressed knowing that it is proposed that the Department of Constitutional Affairs should be responsible for funding it. It would be desirable, it would be preferable, if there were some means by which it would have direct control over its own budget.

364. Dr Whitehead: Sir Robert?

Sir Robert Carswell: I would support that view. I think that if we go on to a model of a Supreme Court it ought to have an independent budget under its own control like the High Court of Australia or the Federal Courts of the United States, and I have discussed with Federal judges in the United States the way that they go and deal with their budget each year with Congress. It is quite a difficult and important process but it gives them an independence which I think is a desirable thing. It gives somebody a lot of extra work and, speaking for myself, I would not particularly enjoy having to do it at home but there would be advantages. I think on balance it is better than having their money rationed out to them by the DCA.

Chairman: We have reported, as Lord Cullen remembered because he kindly gave informal evidence to us, on the Scottish appointments system and the initial experience of it. The Northern Ireland system is in statute form but not yet up and running but we have one or two questions about judicial appointments which I will ask Mr Bottomley to pursue.

365. Peter Bottomley: Firstly, more generally rather than just in the particular areas you have experience of, is it your experience that an individual often makes, or can make, braver appointments than a committee?

Lord Cullen of Whitekirk: I find it very difficult to answer that question not having sat on a Committee dealing with these matters. It could be, but then I know that it can be argued that it should not be left to some individual exercising power without being answerable for it and without giving explanations, if necessary.

Sir Robert Carswell: We are going to have to manage a Judicial Appointments Commission within somewhere about twelve to eighteen months, when it is likely to be started. Time will tell just how it operates. I think the temper of the times is such that that will come all over. I was interested to see the suggestion of a small appointing commission for a Supreme Court. I have expressed a view very strongly to Government that appellate judges should not be appointed by a general appointing commission. A general appointing commission has not got the knowledge of their work, and could not have. The only people who really have knowledge of a judge's work and ability to carry out appellate work are his peers. They know that you cannot hide it from them and their views expressed to a small appointing committee which should be composed of people who understand the work and the qualities required should provide, I think, the best basis for getting the right people in post.

366. Peter Bottomley: There is a recommending commission in Scotland and one coming in Northern Ireland. How much discretion do you think ministers should have?

Sir Robert Carswell: May I come in first there because ours is set in a way which is likely to be quite interesting. The Judicial Appointments Commission puts forward a name to the First and Deputy First Minister. The ministers can turf that back. No doubt they would do so with explanations. If the Commission then said, "I am sorry but we are not prepared to change our view" and puts the same name back again, then the ministers are obliged to accept that under our legislation. We have not worked it yet and we do not know how it will work, but that is the model adopted for Northern Ireland.

367. Peter Bottomley: Brave!

Lord Cullen of Whitekirk: What happens in Scotland, as I understand it, is the board produces if it is for the High Court probably more than one name arranged in a certain order. Certainly we have not had any problems with ministerial interference and I would be very surprised if there was, because what is the point of having a board like this if you do not accept its recommendations? I am consulted, of course, in the process and I would indicate if I had any serious reservations, but I would not seek to second-guess the board if they took a certain view that somebody was preferable over somebody else unless there was something quite fundamental which I felt had not been taken into account, and I would hope that ministers would behave in exactly the same way.

368. Peter Bottomley: So, in effect, you are saying you and ministers and others should be able to tolerate different orders of preference but you ought to be able to say, "Somebody is not suitable for this job", or that somebody is so dramatically more suitable it would be wrong.

Lord Cullen of Whitekirk: I find it very difficult to envisage situations in which ministers would turn down recommendation. Very difficult.

369. Peter Bottomley: Does it matter that the Lord Chief Justice will chair the Commission in Northern Ireland and there is a lay chair in Scotland?

Sir Robert Carswell: I would prefer to see a judicial chairman of any of these appointing bodies but we have not worked it yet and I do not know how it will go in practice. Lord Cullen will know from experience how it has worked in Scotland. I would not attempt to say whether it is better or worse.

Lord Cullen of Whitekirk: I did not design what we have. I am not saying that I am dissatisfied with it but it works and I have no cause whatsoever to be unhappy about the fact that we have very large lay representation and a lay Chairman. That is as matters work out, and a lot has to do with the high calibre of the persons involved.

370. Chairman: We did not find amongst the witnesses who gave evidence to us any great concern such as had been expressed beforehand. Indeed, if anything, the concerns seem to have been allayed.

Lord Cullen of Whitekirk: I must say at a distance I was concerned at the amount of lay involvement but as matters have turned out, and it may be as I say due to the calibre of those involved and their integrity, there is not a difficulty, and they seem to work extremely well with the legal side which is part of the whole.

371. Ross Cranston: I wanted to get Lord Cullen's view on appointments to the appellate courts like the Inner House. Sir Robert said he would not want that to be done by Committee, I think, because it is only the judges who can appreciate the qualities of persons who should be appointed to the appeal body. At one time the purist view was that judges should never expect promotion because that would somehow influence their decisions, but given that we now work a system whereby judges are promoted into appellate bodies, I wanted to get your view on how appointments to that should be made.

Lord Cullen of Whitekirk: In Scotland I and the Lord Justice's Clerk recommend to ministers those who should be promoted from the Outer House to the Inner House and in doing so, of course, we supply thumbnail sketches of the individuals and our considered view as to who is the best and why. That, again, works: we have not had any difficulty with ministers in that respect: and I would see that as something of the model, the ideal, for promotions to the Supreme Court because these are promoted posts from senior members of the judiciary. There will be relatively few of these promotions that occur from time to time, and I think those who are in the best position to advise are their fellows, and the senior members of the judiciary. So I agree entirely.

372. Ross Cranston: Of course the Bar might have people as well with an informed view.

Lord Cullen of Whitekirk: Yes, but does it really matter?

Sir Robert Carswell: I hope it would not dare affirm that of the judges'!

Chairman: Lord Cullen, Sir Robert, I think we can release you from the unfamiliar position of the people being asked the questions, and thank you very warmly for all the help you have given us. We think that our next witnesses are not yet here, but we do have the Judges' Council witnesses present and we hope they might be able to come to the table at this point.

Examination of Witnesses

Witnesses: HH JUDGE MICHAEL BRODRICK, President, and HH JUDGE SHAUN LYONS, Secretary, Council of Her Majesty's Circuit Judges; JUDGE JEREMY COCHRANE, President, and JUDGE MICHAEL WALKER, Secretary, Association of District Judges, examined.

Chairman: We have four judges in front of us. We are very grateful for your time and for the opportunity to hear your view, and we have looked at the documentation which you have already submitted to the consultation.

373. Mr Cunningham: Do you support the idea of a more formal careers structure for judges, allowing greater mobility between the ranks and the possibility of an earlier appointment?

His Honour Judge Lyons: Perhaps I could start on that with what I hope will not be thought to be a legal answer - yes and no.

374. Peter Bottomley: Together or separately?

His Honour Judge Lyons: Yes, there must be the ability to move up the ladder of judicial appointments but in doing so it must be plain that there are not two ways of doing it. If a district judge wishes to become a circuit judge, he should apply and enter the same open competition as all other candidates wishing to be a circuit judge: he will have, of course, or she the inestimable benefit of already holding judicial office and knowing those qualities required, but there should be no suggestion that there is one route to the bench for outsiders and a different route for those already inside.

375. Mr Cunningham: You have stated that specialist judges draw their expertise from many years in practice. Do you object to the idea of appointing senior judges at a younger age?

His Honour Judge Lyons: No, not at all. What is required for any appointment is the requisite skill and experience coupled with the appropriate personal qualities. We do not believe they are necessarily connected with age.

376. Mr Cunningham: Would you put an age limit on it, in light of experience?

His Honour Judge Lyons: It depends on the level of judiciary at which you are entering. What is perfectly plain is that the requirements for years of call or practice at the lower end of the judiciary, the district judges, is less than it is at the higher tier so there is already a length of time built in. I believe it fair to say that the age limits at the lower tier of district judge have recently been removed so the only requirement is the seven years' practice.

Judge Walker: That is right. They were removed about eighteen months ago so now a deputy district judge has to have been in practice for seven years. That is the only requirement, so that makes it theoretically possible to become a deputy district judge in the early 30s and, indeed, some now are 30/35 years of age.

377. Mr Cunningham: Do you think that, given what you have said, specialist arrangements should be made to ensure the quality of the judges?

Judge Walker: All deputy district judges are appointed on merit regardless of age so whether they are 35 or 45 they are appointed because they are the right people to be appointed.

378. Mr Cunningham: Do you still think there is a role for headhunting candidates?

Judge Cochrane: It depends what you mean by "headhunting". If you mean by noticing a practitioner who is doing well and suggesting to them they may consider applying for an appointment, that I think is acceptable. I am thinking at the lower levels - district judge, circuit judge. Indeed, I think Michael Walker would agree with me. We often have practitioners in front of us and we encourage them to consider applying to become a deputy district judge. There is a colleague of mine now, a full-time appointment, I suggested he became a deputy and once he had sat I thought he was doing well and suggested he applied for full-time appointment, but having done that I keep well to one side when he applies.

His Honour Judge Brodrick: I would entirely agree with that view of headhunting. I regard it as one of my functions to act as a talent scout. I have been a judge for sixteen years and I have done it throughout. I think that male candidates have very little problem about putting themselves forward - when you look at the list sometimes they rather overestimate their judicial capabilities. Female candidates and ethnic minority candidates do not come into that category, and I think it is particularly important that we should be looking out for the good quality candidates who need that little bit of encouragement to put themselves forward because they are perhaps judging themselves too severely. You have to do it very carefully because you must not make promises that you cannot keep, but it seems to me that you are perfectly entitled to have somebody in to say, "Have you thought about becoming a recorder or deputy district judge? I think you have the necessary qualities. If you decide to apply, you can name me; I will give you a good reference". Now, I do not think there is any harm in that; you must not go beyond that; and I think one of the functions that the Commission will have in due course is to try and formalise that procedure and encourage judges to use it properly.

379. Chairman: Is there an even stronger case for doing that in order to get highly specialised expertise - admiralty or commercial - in courts which are major centres for export earnings, if you like, that is, cases come to London because there is a high level of expertise in these areas in our courts. Can you maintain that without some process of seeking out from the experienced practitioners in a highly specialised field people to put on the bench?

His Honour Judge Brodrick: I suspect the answer is that you will have to carry on doing that. I think this is probably a little bit above our level.

380. Chairman: In terms of career structure, do you have any anxiety that we might go to the position of a number of continental jurisdictions where you become a judge as a career without really having passed through either advocacy or, indeed, academic law teaching?

His Honour Judge Brodrick: I would be very strongly against that. My view is that you do need a sufficient degree of experience as an advocate, particularly if you are going to become a judge in a criminal case, because you have to deal with things very often the instant they happen and if you get it wrong you end up discharging the jury and you are wasting a great deal of public money. There is a danger in appointing the too young and too inexperienced because, if you make a substandard appointment, for the best of reasons you are stuck with that candidate perhaps for 25 or 30 years, and all you can do is shunt them into a backwater where they do the minimum amount of harm. There is a real risk that one seriously substandard candidate will wreck the chances of improving diversity because the media will get hold of it, it will be published all over the place, and I think it will do a lot of damage.

Judge Cochrane: I have an anxiety about the concept of career judiciary. I am a district judge and have been for 21 years. I view it as the very best job in the legal world, and I am concerned that my job will be devalued and under-valued by a concept of career judiciary. I have no difficulty with someone wishing to move on and become a Circuit or High Court judge, so be it, but certainly they should be appointed younger - there is no reason why they should not be appointed younger. I do not view it as promotion but applying for a different job. I do believe, however, that you need some time in life as well as in practice - seven years from admission or call as the case may be - but in real terms our lives seem to present us with problems all our lives and I think the young man or woman of 28, 30, 32 does have difficulty in fully understanding the machinations of the people who are eventually going to appear before them. I think you need to learn a little bit about life, become fractionally cynical - or realistic, depending upon your viewpoint.

381. Keith Vaz: I want to ask you about process, and how the information is gathered about candidates under the present system and any future system we might have. Obviously a file is prepared at Selbourne House and some of you may be asked your opinion about the suitability of candidates for a particular post. Is there anything we can learn from that experience? Is there anything we need to change - not in the grand vision of things, what the Lord Chancellor wants to achieve with the changes, but in the actual practical detail which could well affect whether somebody is appointed?

His Honour Judge Brodrick: Can I just give a brief historical sketch? I have been a judge for 16 years and the system has changed radically in the course of that period. To begin with I would be seen by I think it was the number two in the Lord Chancellor's Department, probably once every two years for about an hour; we would go through lists of potential candidates; I would give oral comments and a few days later the typed-up version would arrive; I would make any necessary corrections and send it back. Now that probably does qualify as "secret soundings". The system has now changed completely. In those days most of the power probably resided with the presiding judges. Now, you have automatic consultees, for example, resident judges, because they are senior and they see a lot of people. You get a form which is broken down into all the categories set out in the consultation paper, and you are asked to provide evidence-based comments, so if you reply, "This candidate is an excellent choice for a judge, very clubable, etc, etc", I believe that will carry no weight at all. It is completely worthless and the person filling in a form in that way is wasting their time. What I like is for a candidate to give me a list of their significant cases where they have appeared before me and I can then, if necessary, go to my notebook and can refresh my memory about that person's performance and give evidence-based comments. I do not think they qualify as secret soundings because one expects in any appointment process that references are private, so that people can speak with complete frankness. These people have to appear before me in the following weeks.

382. Keith Vaz: One of the problems is feedback. A lot of people are turned down and especially amongst the minority community. You correctly said not enough put themselves forward and they cannot get the high quality references they need to get to first base. Do you think the feedback currently given is enough under the new system, whatever that system should be, and should we have more interchange of information once you have not been successful to help you apply again?

His Honour Judge Brodrick: My difficulty in answering that is I have never been the subject of that system because it was not in place. For example, I was applying for silk and getting turned down because they wanted me to become a circuit judge.

His Honour Judge Lyons: Consultation is essential. For permanent appointments you have to sit in a temporary appointment and it would be quite wrong for those who view your temporary work not to say whether you were suitable for full-time. I have some doubts about the breadth of consultation at the moment and its concentration. I also have some doubts about the point that it is called in, particularly for first appointments. I regard it as essential: it must be structured, tightly controlled and I personally would have no objections to an open system, although I suspect I stand-alone on that.

Judge Walker: I am going to defer to Judge Cochrane because he has been intimately involved in the appointments process for many years and I have not but I will just mention a couple of things before I do. The process is already under a great deal of change. There is, for instance, now a work shadowing scheme where someone who is thinking of possibly applying for a deputy appointment can sit in with a judge for 1-5 days, very often for a week, and experience the work first-hand from the judge's point of view.

383. Keith Vaz: How do people find out about this system? Is it publicised?

Judge Walker: It is simply a matter of contacting the department and they will arrange for you to sit at their local court or whatever. Very often it is arranged locally. Someone might express to a judge the idea that they would like to know more and they are encouraged to work-shadow. Interestingly the figures more recently suggest that increasingly the ethnic minorities are taking advantage of that scheme. The other process under change is that with deputy district judges we now have an assessment centre process. That, interestingly, has shown an increased number of applicants from females and ethnic minorities and, indeed, in terms of appointments an increased number of female and ethnic minority appointments.

384. Keith Vaz: But you have to have litigation experience to become a part-time deputy district judge, have you not?

Judge Walker: Yes, but not necessarily in the field where you eventually would sit, and that is where the work-shadowing scheme has proved a great bonus.

385. Chairman: It sounds as though the work-shadowing scheme could be usefully written up in the legal press.

Judge Cochrane: It has been publicised in the past, and in Derby where I sit for many years we have had young and trainee solicitors sitting with us - not work-shadowing but just sitting in. I do not agree that you need litigation experience. I have been involved in appointments for some time and some few years ago an admiralty specialist in the City of London who earned a huge sum of money wanted to perform a public service and put himself forward to be a deputy district judge and he was appointed. He was an office worker in the sense that he dealt with big cases behind closed doors. So far as the appointments process is concerned, I personally do not like the concept of consultation. Certainly for first-time appointments, recorders and deputy district judges, I cannot see that consultation is appropriate. In the event that I am an applicant, a solicitor practitioner who does not appear in court often, I apply to become a recorder and if there is consultation the barrister applicant who appears in court regularly is going to have the advantage over me immediately, and that seems to me to be unfair. However, dealing with the appointments process, it has changed over the years. Michael has mentioned the assessment centre. We have gone further than merely that, and I do not imagine you will want the detail of it, but for appointments to the deputy district bench now, the sift is carried out before references are taken. There is no consultation.

386. Keith Vaz: Who does that?

Judge Cochrane: There has been a new process this year which is replicating what happened in industry. Officials from the DCA will carry out the preliminary sift and then a sift team, comprising one district judge, one lay person and another official, will go through and moderate. I will not go through the exact detail - you have not the time, but there is a sift with no references, and then references are taken. That in a way is a bit silly because there should be the interview process first and then references, but this has been an innovation in the last two years and we, the district judges, as always have innovated and we have pressed for this and I believe it is the way forward. Furthermore, as regards encouraging people to apply, the Law Society and Bar Council have done their bit. I went six weeks ago to a minority lawyers' conference in London; I was asked to spend a Saturday and asked if I would write a role play to encourage ethnic minority people to come, so I went to Law Society Hall and did my role play and I suggested in the talk-up afterwards that people should contact a friendly district judge and go and sit in with them, and about half a dozen people came to me later and said who should they contact and I told them, and one lady from London was going to come and sit with me in Derby. Unfortunately she does not return my calls now, but there we are!

Chairman: Ann Cryer has just joined us so perhaps I could mention that she is a magistrate on the supplementary list and not sitting.

Mrs Cryer: I am on the supplemental list at Bradford, and therefore not sitting.

387. Ross Cranston: I was just going to take issue with Judge Broderick about the need to have a wealth of experience in terms of appointment. I remember when I was thinking of becoming an assistant recorder in the early 1990s, I spoke to Lord Goff who was one of the great judges of the 20^th Century, and he reassured me and he said, "The first summing up to a jury I ever heard was the one that I gave myself". I think that the approach of encouragement is to be commended, but I am just wondering whether that is the policy of the Judges Council and of the Association of District Judges because I think it would be a good thing if you were all out there doing that as a matter of policy, encouraging women and ethnic minority candidates.

Judge Cochrane: It is not a policy of the Association of District Judges, but we have done it for years. I think all of us are active. As far as women are concerned, it is significant how the numbers have increased. At the last Deputy District Judge Induction Course, the percentage of females was 35.56 and over the past four years it has gone up and it is gradually increasing. I nearly said "unfortunately", but that would be inappropriate and I should not preface it with that word. The number of barristers becoming deputy district judges is also increasing, but women are increasing in number. I cannot pretend I know whether ethnic minorities are increasing in number because although I have been a director of training for deputies for some years, I do not keep statistics. I do notice the number of women.

388. Ross Cranston: I am supposed to ask you some questions about the Judicial Appointments Commission and its composition. Now, one view of the world says that the judicial slot should be mainly High Court judges and maybe one representative of the other judiciary. You, in your submission, have taken a different view and I am wondering if you can just talk us through that and, in particular, the point about who should be there. Should they be nominated by the bodies, whether it be the Bar Council, the Association of District Judges or whatever or the High Court judiciary, or should they simply have that background and then be selected in the ordinary way that is now done in the Civil Service application, Nolan principles and so on? Those are the two issues.

His Honour Judge Lyons: Perhaps I could start, and I that know my colleagues, if I miss anything important, will jump in, firstly, to discuss the overall composition of the body and its balance. We were concerned to see both in the Government paper and in the suggestions of other people who have given evidence to you that they believe a majority of lay members is both important and appropriate. In a time of change for the Constitution, because we are getting rid of one system, it does not mean that there are not precedents and guidance for the new one. We do not start with a clean sheet of paper. All the European and Commonwealth guidance, to which this country subscribes and supports, makes it clear that there should be a majority of judicial people on a commission. This is solely for the independence issue. Of course they also bring their expertise as judges to help with selection issues. If one looks, for instance, at mainland Europe and indeed to those countries currently seeking accession to the European Union, the only country which appears not to have at least 50%, and the vast majority have a majority of judges, is Bulgaria and it may be, and Mr Soley has already mentioned surprise by some European countries about our system, that they might be also surprised if we lined up with Bulgaria and not with others.

389. Chairman: And Scotland?

His Honour Judge Lyons: Well, it is a balance there, yes.

390. Ross Cranston: There is a Council of Europe recommendation, is there not, that commissions should have a dominance of judges?

His Honour Judge Lyons: That is right. It also goes on in most of the guidance to say that the judges who are on the Commission should be selected by other judges and also that judges should have a say on the selection of the non-judicial members. I think that sums up the various pieces of guidance. Having said that, the Judges Council's view is that we have a unique opportunity in this country to strike an unusual balance: five judges representing the five tiers, and it says "nominated by the Lord Chief Justice", but in fact what lies behind that is that we on the Council would expect to produce our candidate to him and so would the district judges; two lay selected by Nolan principles, and I have no difficulty whatsoever; and then two who cross the boundary, magistrates and tribunal members, both lay and judicial. They can provide, as it were, the balance within that committee, so looked at in one sense there is a majority of judicial and looked at in the other sense there is a majority of lay. There would also be one barrister and one solicitor, nominated by whatever process their supporting bodies choose to follow. It seems to me there that the 30,000 lay judiciary we have in this country provide us with a perfect opportunity for squaring what may seem to be a very awkward circle.

391. Ross Cranston: When you sit as a circuit judge on appeal with two justices, how often do those justices disagree with your view?

His Honour Judge Lyons: On law, never. On sentence, I frequently submit myself to their views.

392. Ross Cranston: That is the problem, is it not, that lay people may well be dominated by the judicial view of things?

His Honour Judge Brodrick: Well, my experience of sitting with magistrates is most emphatically not and if you try to dominate them, you are (a) not doing your job properly, and (b) you are likely to achieve entirely the opposite reaction to the one you want. They are very independent and they are very determined and rightly so. I would make it clear to them that they are fully entitled to overrule me on any question of fact or sentence.

His Honour Judge Lyons: I entirely support that. I perhaps should declare an interest in another role. I am the Chairman of the Middlesex Advisory Committee. We are the fourth largest Bench in the country. I do a lot of training and discussion with them and they are fully aware that on matters of sentence, they are the equal of a judge and they use it.

Ross Cranston: Well, it is good to hear.

393. Mr Soley: Could I just clarify what sounds an interesting structure which you are describing. You would perceive the lay magistrates as being seen as lay people?

His Honour Judge Lyons: Yes.

394. Mr Soley: Very clearly?

His Honour Judge Lyons: They are.

395. Mr Soley: I understand that, but many people seeing them sitting in their judicial role will see them as being of judicial function.

His Honour Judge Lyons: Well, I do not see that as necessarily a disadvantage. The committee that we have suggested has a lay chairman and we think that entirely right and proper. It then has five permanent judges and six other members. They are two entirely lay, one solicitor, one barrister, in other words two lawyers, and then two who are lay judicial, the tribunals and the magistrates. Although that particular composition does not meet the European and Commonwealth guidelines because there is a minority of judges, we believe those lay judicial office-holders could swing it to seven/six were they to go that way, but they bring with them not only their judicial responsibilities and experience, but also their wide experience as members of the lay public.

396. Mr Soley: Just to clarify one part there, on the description you have just given you described two people as entirely lay members.

His Honour Judge Lyons: Yes.

397. Mr Soley: How were they chosen for that?

His Honour Judge Lyons: They would be chosen - I hate to use the word - no doubt from the public and perhaps sometimes categorised as "the great and the good", but they would have to be selected rather as the current Judicial Commission is, people who are eminent in their own field, with experience of management and personnel work, and they would be selected on Nolan principles by a commission.

398. Mr Soley: With the proposal that the Lord Chancellor's role goes, who should be responsible for judicial independence?

His Honour Judge Lyons: Well, this is extremely difficult. The changes that are taking place at the moment are so wide-ranging that I do not think anybody fully understands them yet. What we are perfectly clear about is that when you shed an unwritten Constitution with its checks and balances, there has got to be a statutory settlement. Judicial independence should be in a statute and the responsibility of the entire corpus of ministers, not just one minister. No doubt the law officers will help the Cabinet if they should be straying in the wrong areas. We also believe that the Lord Chief Justice must become officially the head of judiciary, that he must be known so and must assume a very large number of the roles currently conducted by the Lord Chancellor. That is part of discussions which are continuing at the moment.

399. Mr Soley: So you certainly do not see the function devolving to the minister responsible for constitutional affairs?

His Honour Judge Lyons: No.

400. Mr Soley: You would be strongly against that, I understand?

His Honour Judge Lyons: Yes. We largely see him as the man who minds the money from the Treasury. We do not suppose any judicial figure could ever attempt to be a success at that, but, that said, he really cannot fulfil any of the roles of the head of judiciary.

His Honour Judge Brodrick: As a loose analogy, you are unwinding three separate strands and they actually interlink. What somebody needs to do is to give a complete list of the powers, duties, responsibilities, decisions, et cetera, et cetera, which currently are held by the office of Lord Chancellor and then you have got to mark them, "House of Lords", "political", "judicial". The House of Lords can sort out the problems that are created for it, the political can devolve to the Secretary of State, the judicial cannot and the judicial have got to go elsewhere, a part to the Judicial Appointments Commission, and the rest, in the main, to the Lord Chief Justice, and I entirely agree that he must become, by statute, head of the judiciary.

401. Chairman: Where does that leave the responsibility for the efficient operation of the court system, for which Parliament regards a minister as accountable, as distinct from the carrying out of judicial functions by judges?

His Honour Judge Brodrick: Well, I think that is a very difficult issue which will have to be resolved in discussion between the Secretary of State and the Lord Chief Justice. I entirely accept that if Parliament is voting money for courts and judges, Parliament is entitled to have an account of how that money is spent. Precisely who gives it, I think, is a matter for discussion and perhaps way above our level.

402. Mr Soley: Is your fear that if the Lord Chief Justice takes on this judicial role of the Lord Chancellor, like in the political interface, the system will become more political, that there will be more political clout, if you like, between the judiciary and ministers? Is that what your fear is?

His Honour Judge Brodrick: I think there is a risk of that. At the moment with the Lord Chief Justice as a member of the House of Lords, if he has fears about an infringement of judicial independence, he can either speak in or, if necessary, initiate a debate in the House of Lords and the matter can be properly ventilated where it should be in one of the Houses of Parliament. If you separate the system completely, then it may be that these matters have to be argued and discussed in the press and I really do not think that that is the best way of doing it. I think one has got to find some mechanism which allows matters to be ventilated in one or other House of Parliament.

His Honour Judge Lyons: I think one of your earlier witnesses made the difference between separation between the judiciary and the Executive and separation between the judiciary and the Legislature. I do not mean your earlier witnesses today, but in one of your earlier sessions. I think there are very strong resonances in what Judge Brodrick has just said.

403. Keith Vaz: Can you give me some statistics? There is the Council of Her Majesty's Circuit Judges, which I presume is the number of people in the executive committee. How many of those members are women and how many are black or Asian?

His Honour Judge Lyons: In our committee?

404. Keith Vaz: The governing body, your committee.

His Honour Judge Lyons: The committee is 22 strong. There are two women. The next chairman is starting on 1^st January.

His Honour Judge Brodrick: Three.

405. Keith Vaz: So three out of 22. How many are black or Asian?

His Honour Judge Lyons: None.

406. Keith Vaz: What about the Association of District Judges? You have got a governing body, an executive committee.

Judge Walker: There is one woman and no ethnic minority members.

407. Keith Vaz: Do you think you are in a position to put forward views on diversity bearing in mind that you are not a particularly diverse organisation?

Judge Cochrane: Recently the South-Eastern Circuit, north, needed a new member as someone had got another job and I encouraged two females to make applications, to put themselves forward. Both decided that they did not wish to do so because they felt it would require too much input. That was their privilege, but I pressed them, although it was not my circuit, because I wanted to increase the number of women and in the event they did not put themselves forward. Only one person did, a male. As regards people from the ethnic minorities, I think it is fair to say that only in recent years have people from the Asian and black communities come into the job. There is an increasing number and the number will continue to increase as society evolves. As that happens, we are hopeful that people will put themselves forward. So far as the Association has its committee of eight, they are ex officio, we do involve and have involved people from ethnic minorities in sub-groups, not because they are from ethnic minorities, but when we are dealing with, for example, company insolvency, a colleague of ours, who happens to be of an ethnic origin, really knows all there is to know about company insolvency, so we turn to him because he knows what he is doing. We also turn to women if they know what they are doing and men if they know what they are doing. Let me say this: that we do almost everything by Nolan principles. We have our own journal and we advertise.

Chairman: Gentlemen, thank you very much indeed.

Examination of Witnesses

Witnesses: MR PETER HERBERT, Chairperson, Society for Black Lawyers, MR OBA NSUGBE QC, Leader of the minority lawyers on the South-Eastern Circuit, and MR GELAGA KING, South-Eastern Circuit, examined.

Chairman: Mr Herbert, on behalf of the Society for Black Lawyers, welcome. Mr Nsugbe has been added to our list of witnesses today and Mr King from the South-Eastern Circuit.

408. Keith Vaz: Mr Herbert, why is your organisation complaining about the modernisation of the judicial appointments system?

Mr Herbert: Well, because ten years ago I wrote a paper with Tony Scrivener, which I think you have a copy of, recommending this commission. We helped it to get into the Labour Party Manifesto and then it dropped out of the Labour Party Manifesto until it has come back via the back door. We gave evidence, our predecessor, and recommended the same thing and here we are again ten years later, so we have been saying this for a long time primarily for three reasons: firstly, because you do not have a judiciary or are not likely to have a judiciary representative of Britain unless you do something fairly radical and the present system simply did not work; secondly, it does not reflect the legal community where one in five people who are coming out of law school and Bar school are from so-called minorities now, and; thirdly, if you do not alter those two facts fundamentally, you will not have the confidence that the courts and the judiciary need in order to maintain all the pillars of this democracy as being an inclusive one and not an exclusive one.

409. Keith Vaz: But you liked Lord Irvine and you said that he was prepared to intervene and he was prepared to overturn decisions where they had been made which did not promote black and Asian people?

Mr Herbert: Yes, although "like" is possibly a very wide verb to use.

410. Keith Vaz: You had praise for what he did?

Mr Herbert: There was a role or has been a role and where the system was imperfect, which it clearly was, there was a need for intervention. Now, interventions, I know because it happened in my own case, happened when I was not getting appointed and you would go to see High Court judges and they would intervene on your behalf and suddenly you would get an interview, and this is how it happened. So without his intervention, or somebody in a very senior position, the status quo would not have shifted at all and there were several minority barristers, to a lesser extent solicitors, who asked for their personal cases to be addressed by him and were appointed either after meeting him personally and having him pay personal attention to their career progression or lack of appointment or after having had a review conducted by himself.

411. Keith Vaz: But that will not happen under the new system presumably because the Lord Chancellor would have handed over his powers, so you cannot go and say to the individual minister, "This has been done in an incorrect way. I think that you should review this". This cannot happen, can it, if you support a Judicial Appointments Commission?

Mr Herbert: Well, I think the issue with the Judicial Appointments Commission is that it will, generally speaking, appoint people who look like, sound like it. I do not have a tremendous confidence unless you address the membership of the Commission itself and make that diverse. The Civil Service Government Legal Service is one of the least diverse parts of government and less than 4% of all lawyers in the Government Legal Service are from minorities, so with that as a yardstick, I believe you need to get to the Commission first, but you do still need a special appeal process, possibly to the Minister who can intervene and do either three things: firstly, order that the individual case be sent back for a review; or, secondly, intervene and make an appointment; or, thirdly, as a piece of positive action, meet with that person and give positive recommendations as to how their career progression can be developed in the ensuing appointments round.

412. Keith Vaz: Perhaps Mr Nsugbe can help us as well on this point. You talk about establishment profiles, building up the good and the great in order to be appointed to these positions and at the moment these are all occupied by people who are part of the establishment.

Mr Herbert: Yes.

413. Keith Vaz: Many would say, looking at your career record, you are now a part-time immigration adjudicator and you may have other appointments that we do not know about in our profile, and your colleague sitting next to you is a Queen's Counsel, that there is nothing wrong with the system, is there, if it produces people like yourselves, and it is happening?

Mr Herbert: Well, with due respect, it is not because I had to go and see my five High Court judges and say, "I am going to take the Lord Chancellor to the tribunal if I do not get this appointment sorted out", and they did and I got an interview where I had never previously been interviewed for six years. With the Employment Tribunal, and this is mirrored by other people's experiences, you write in letters and you point out that the criteria they set for you were not applied to other candidates that you know of. You then get an interview, you then get rejected and then the next year you do not even get an interview. Well, that has happened repeatedly, so no, the system was not working.

414. Keith Vaz: What about Mr Nsugbe? You are a Queen's Counsel?

Mr Nsugbe: Yes.

415. Keith Vaz: Does the system not work if it is producing people like you, high-quality people?

Mr Nsugbe: It depends what happens next year about Queen's Counsel where there is a suggestion we may be demoted.

416. Keith Vaz: Having given it to you, they are going to take it away?

Mr Nsugbe: Well, I doubt it.

417. Chairman: You attach importance to the Queen's Counsel system, do you?

Mr Nsugbe: Definitely I do and I have said this openly. I think that where you have a system which is, many would say, not quick enough, and I accept that, where you have a system which is marking out able people and giving them recognition, which I think is the key word for ethnic minorities, I think the issue for us is recognition, you are giving them a similar platform to others who have enjoyed it for years and years and years and I think it is a disaster if you simply say, "Well, we are tired of doing this and we are going to hand over to someone else". Where, Keith, you mentioned the issue of Queen's Counsel, I am not sure that that is something which will continue, but I do think that there is a real issue about building up and supporting the careers of ethnic minority lawyers.

418. Keith Vaz: Yes, and that is the final question I want to ask before my colleagues want to come in. We have had evidence from many good and great people from an establishment that is obviously predominantly white. You are probably the second set of black witnesses to come before this Committee. The Lord Chancellor has made it very clear that he wants a more diverse judiciary and this is one of the reasons why he wants an appointments commission, but we get stuck with this merit principle. Black and Asian people just do not reach that merit threshold that requires them to be considered. How are you, as people who have succeeded in the legal profession, going to deal with this one issue that seems to be holding back black and Asian people coming forward, this merit point?

Mr Herbert: Well, to speak plainly, it is largely racism that holds back minorities, not merits. It is about the lack of opportunity and there are many people, as all of us here know, who would make excellent judges, but they are not given the opportunity and that is directly the power is not surrendered easily and it is dressed up as merit; it is not. The way round it is positive action. One of the mechanisms is to give the Judicial Appointments Commission targets to achieve diversity as there are in the police force and everywhere else. You work to your targets, you work to advertising, you work to career development, you work to seminars directed at minorities and you work to educating the people who make the appointments. Largely what you do also is you include solicitors because now there are 6,000 minority solicitors who make up, as solicitors as a whole, 19%(?) of all lawyers and you are still attracting a very small pool. You get the best in the sense of what you have got, not the best of what there is and that is the other mechanism that will in due course eradicate a lot of minorities with extreme talent and ability and that is why, from our point of view, having been at this a long, long time, you have to do something fairly radical. I came from Alan Beith's constituency, Widdrington, and it is a long way from there to here, but it is not a given because going to school there and elsewhere, you are not seen as being judicial potential, and it is not about a problem of people not applying; they are very, very keen to apply, but they have to have a belief that the system will work.

419. Chairman: As far as I know, no white person has ever made it from Widdrington into the senior ranks of the legal profession.

Mr Herbert: Well, they have now. As just one very recent example, the first two black women district judges were appointed to the Family Division. Over 48% of children in London are from minorities. Now, they were appointed because they were approached and asked to apply and then appointed. Now, that system in a sense has to be overturned, but it has to be one that is open and transparent, encouraged and you have to be tested by targets every year. If it is not working, you redress it and you impart more positive action to get round that block.

420. 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.

421. 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.

422. 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.

423. 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.

424. 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.

425. 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.

426. 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.

427. 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.

428. 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.

429. 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.

 

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

Mr Nsugbe: Yes.

431. 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.

432. 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.

433. 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?

434. 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.

435. 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.

436. 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.

437. 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 per cent 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.