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Judges

Volume 164: debated on Thursday 21 December 1989

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1.57 pm

Let me begin, Madam Deputy Speaker, by wishing you and everyone else a happy Christmas and a merry new year. In a few hours' time, this place will be closed. The heat of battle will be over and tranquility will have returned to our land. Before that happens, I should like to give the Law Officers a chance to lift the veils that shroud our system of judicial appointments—veils which make that system a complete mystery to the public. I should also like to give the Law Officers a chance to explain why the system is sexist and racist as well as being based on snobbery and class.

As a barrister, I know only too well that the secrecy that surrounds the appointment of judges is almost masonic. Judges are drawn almost exclusively from the ranks of barristers, and most of them are appointed by the Lord Chancellor, in consultation with other judges. The result of that system is that judges recruit other judges to the Bench in their own image—their own sex, colour, class and prejudices. This system produces an elite—a self-perpetuating oligarchy. It creates a judiciary which in my view is composed of the least forward-looking, least radical and most hidebound body of our citizenry.

Justice at the highest levels has become the preserve of cloistered, geriatric, white men. Is it any wonder that we have judges asking in court, "Who is Mick Jagger?" Is it any wonder that judges have to ask barristers to explain what "bonking" means? If I said to the Law Officers, "Bonking is good for you", they would know what I meant and would not need an interpreter or a barrister to demonstrate it for them.

More seriously, the character of these cloistered, geriatric, white men can explain some of the tragic mistakes that the Court of Appeal made in the cases of the Guildford Four and the Birmingham Six. Perhaps the character of these geriatric, cloistered, white men can also help to explain the reaction of judges to the Lord Chancellor's proposals to get rid of the restrictive practices of barristers and solicitors.

That brings me to the question of how the Lord Chief Justice is appointed. Can the Minister describe the system under which the current Lord Chief Justice, Lord Justice Lane, will be replaced when he resigns? Which Ministers will be consulted? Presumably the Lord Chancellor will consult the Prime Minister, but what about the Home Secretary and the Attorney-General? Which senior judges will be consulted? The Law Officers may say that this is all hypothetical and that they do not know that the Lord Chief Justice will resign, but they should remember that the Lord Chief Justice described the proposals to get rid of the restrictive practices of barristers and solicitors, which were brought forward by the Lord Chancellor, as "sinister". He said two days ago in the House of Lords:
"the interests of justice have gone."—[Official Report, House of Lords, 19 December 1989; Vol. 514, c. 146.]
It is inconceivable that the Lord Chief Justice could preside over a system that he believes to be sinister and could continue to preside over a system from which he believes that the interests of justice have gone. It is not tenable that the Lord Chief Justice should be engaged in a running battle with the Lord Chancellor. Although I am sure that the Lord Chief Justice would prefer that the reforms were withdrawn and that the Lord Chancellor resigned, that will not happen. Many of us at the Bar believe that the Lord Chief Justice is honour bound to resign and we want to know the system by which he will be replaced.

There is racism and sexism in the system of the appointment of judges. We know that over 50 per cent. of the population of this country is composed of women, yet out of 10 Lords of Appeal in Ordinary, there are no women. Out of 27 Lord Justices of Appeal, only one is female. Out of 81 High Court judges, only one is female. Out of 422 circuit judges, only 17 are female, which is 4 per cent. Out of 703 recorders, only 25 are female, which is 3·6 per cent. I should have thought that by any standards that was a disgraceful state of affairs and that it shows that women are shunned, scorned and rejected in recruitment by myopic male judges.

I am convinced that it is no use for the Attorney-General to say, as he has in a parliamentary answer, that we must simply encourage more women to come to the Bar and to put themselves forward as judges. The system must discriminate positively in favour of women as judges. We also need positive discrimination by chambers to ensure that the number of women practising at the Bar increases and thus that more women can come forward as potential judges. How many chambers have a quota for women barristers? In the medical profession, over 50 per cent. of those putting themselves forward to become doctors are women, but I am certain that nothing like 50 per cent. of those coming to the Bar are women. What are chambers, the Bar Council, judges and the Lord Chancellor doing to ensure that more women come forward?

How many chambers where groups of barristers meet have a creche? How many chambers or groups of chambers have a workplace nursery to help women barristers? How many courts have a creche or workplace nursery to help women barristers and solicitors? Is it any wonder that both the Bar and judges exude sexism? Ironically, sometimes this works in favour of women. Judges tend to see the women before them not as intelligent, rational beings but, bringing with them the prejudices of a thousand years of male chauvinism, as pretty little things, full of feelings and sentiment, but lacking in logic and reason. One strange result of that is that women in the criminal courts may get lower sentences than men who have committed the same crimes.

In the civil courts, we have judges such as Mr. Justice Bernard Caulfield fantasising over women. He described one witness as fragrant, radiant and elegant. I shall not be a chauvinist and comment on whether Mrs. Mary Archer is radiant and elegant. However, some women have asked me how the hell the judge knew that she was fragrant. What scent was this woman using that was so powerful that she could deceive this besotted judge? "I say, it is Chanel No. 5, old man." "Sorry, mind, it is Poison by Dior." That is a strange way to approach women in the witness box, and it is strange to use such phrases in summing up.

What about black people? The last census showed, the proportion of black people in the population as 3 per cent. but I should not be surprised if, when the 1990 census comes out, the proportion is more like 5 per cent. Out of 10 Lords of Appeal in Ordinary, none is black. Out of 27 Lord Justices of Appeal, none is black. Out of 81 High Court judges, none is black. Out of 422 circuit judges, only one is black—one fifth of 1 per cent. of the total. Out of 703 recorders, only five are black—0·7 per cent. of the total. That does not mean that judges are racist, but it reflects the institutionalised racism of the judiciary. It suggests a shocking lack of concern on the part of judges about the future of black people.

How can black people trust the system of justice when all they ever see before them are these cloistered, geriatric white men?

Order. I have allowed the hon. Gentleman a great deal of leeway, but I hope that he will not reflect in that manner on the judiciary. As he well knows, to do such a thing, he would need to table a substantive motion.

I am not criticising them. "Cloistered" means that they come from a narrow social background. That is a matter of fact, because they basically come from public schools and universities. "Geriatric" was a phrase used by Lord Scarman. He gave me the idea to raise this debate. I heard him on the radio talking about the response of black people to our legal system and he explained that there were not enough black policemen and was asked, "What about the number of black judges?" He became so embarrassed that I started to table questions and find out what went on. "Geriatric"—at the highest level, although not at the level of the recorders or circuit judges—is a description of the age group of these people. "White" is a description of their colour. No criticism is intended. It is a plain, straightforward statement of fact.

How can black people feel confidence in the system? What will the Law Officers and the Lord Chancellor do about it? Again, positive discrimination is one of the answers, but I have one or two new proposals. We need a fundamental review of how judges are trained and appointed. We need a review that will open out access to the judiciary and get rid of the virtual monopoly of the Bar.

It is clear to me that being an advocate is not the same thing as being a judge. Yet nearly all the judges are appointed from advocates, from members of the Bar and mainly from people who have become Queen's counsel at the Bar, but they do not have the same function.

Of course it is clear that judges need to know how the courts work. They need to know what counsel for the prosecution and for the defence, for the plaintiff and for the respondent, get up to. But it does not follow that a judge must have been a barrister, and that is not the case in some countries.

All solicitors should be eligible for appointment as judges. Academic lawyers should be eligible for appointment as judges, as should other people who have had distinguished careers in entirely different areas. The Lord Chancellor should look to headhunting when he wants to appoint judges, and that may involve something which is distasteful to the Bar, although perhaps not so distasteful to the Lord Chancellor who is more radical than some of his predecessors. I have great sympathy for the Lord Chancellor and the battle that he is having with the judges in his attempt to reform the legal system. If I can catch Mr. Speaker's eye on another occasion, I shall be saying words in his favour on that matter. Such an approach may involve not only headhunting but advertising.

That is a wide issue which we do not have time to go into in this debate. The fusion of solicitors and barristers would help to widen the arena from which judges could be drawn. Fusion is a contentious issue. There are arguments for and against, and it is not solely concerned with the appointment of judges but with the whole system of justice. But for other reasons as well, fusion would widen the area from which judges could be drawn.

We should set up a judicial commission along the lines of the Civil Service Commission to look at the recruiting and training of judges. That judicial commission should contain not only some judges—I accept that there would have to be some judges—but distinguished lay people who have been successful in other spheres of life. That commission should look at the issue and make recommendations that would widen the character and nature of those who make up the Bench.

Justice is a precious thing and it should not only be for all the people, it should be seen to be for all the people. Therefore, I hope that the Solicitor-General will come forward with some new and constructive ideas so that we can go into the 1990s improving our system of justice.

2.7 pm

I congratulate the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore) on initiating the debate. He masquerades most convincingly before you, Madam Deputy Speaker, as a respectable, suited, balding white man, as I do myself.

The debate provides an opportunity to explain briefly the way in which judges are appointed. It also provides an opportunity to dispel some of the myths and misunderstandings that prevail when the subject is discussed.

It will surely be common ground that it is essential to the fair and proper working of Britain's system of justice that those appointed to the judiciary should be of the highest quality, in terms of intellect, character and experience, and of the highest integrity.

It should come as no surprise that successive Lord Chancellors have testified that they regard the appointment of judges as among their most important duties. The number and range of the modern judiciary make that task more difficult than it has ever been. I will briefly outline its extent.

First, the Lord Chancellor is responsible for advising the Prime Minister on the appointment of the most senior judges of all, the Lords of Appeal, the heads of the four divisions of the High Court and the Lords Justices of Appeal. He is also responsible for making recommendations on the appointment of High Court judges, circuit judges and Queen's counsel. Those appointments are all Crown appointments and the Lord Chancellor's function is to provide advice to the Prime Minister who, in turn, advises the Queen.

The Lord Chancellor is also responsible for appointing judicial officers, such as masters of the Supreme Court and registrars of the High Court and county court, stipendiary magistrates and many tribunal chairmen. He is also responsible for appointing, or advising on the appointment of, a wide range of part-time judges and judicial officers, including recorders and assistant recorders with similar jurisdiction to the full-time office holders whom I have already mentioned. Finally, he is responsible for appointing all the lay magistrates in England and Wales, except in the Duchy of Lancaster. They number over 28,000. As the hon. Member for Hackney, South and Shoreditch accepts, there is a very high, and growing, proportion of magistrates from the ethnic minorities, for the reason that the pool from which they can be appointed is already much wider and more easily available.

To assist the Lord Chancellor in making the main judicial appointments, he looks for the great bulk of his advice to the senior judiciary: to the judges and leaders of the legal profession. To help him in the task of gathering and recording their views, interviewing actual and potential candidates for many of the appointments and summarising and correlating the large amount of information gained, the Lord Chancellor has appointed a small team of officials within his Department, but he personally takes all the important decisions—in particular, on every full-time appointment and all the senior part-time appointments.

Eligibility for judicial appointment is regulated in the first instance by statute. At present, a Lord Justice or above is required to be a barrister of at least 15 years' standing, a High Court judge to be a barrister of 10 years' standing and a circuit judge to be a barrister or solicitor of 10 years' standing, provided, if he or she be a solicitor, that they have served as a recorder for at least three years. There is no statutory requirement for Queen's counsel. These eligibility requirements will be changed if the proposals in the Courts and Legal Services Bill become law in due course. The main change, in terms of judicial appointments, is that solicitors with appropriate advocacy qualifications will be eligible for appointment to the High Court and above.

Progression to the most senior ranks in the judiciary depends primarily on experience and performance in previous appointments. In modern times, the Law Lords have been drawn almost exclusively from the Court of Appeal, and Lords Justices almost exclusively from the High Court. High Court judges are appointed from those members of the senior Bar who are recognised as being at the head of the profession, augmented by some promotions from the circuit bench. The circuit judges are chosen on application from the relatively small number of recorders of sufficient seniority and standing who are recognised as suitable for full-time appointments at this level. At any one time, therefore, although the overall numbers in the profession—6,000 barristers and nearly 50,000 solicitors—may seem large, the pool of real candidates for a particular appointment never looks very extensive.

The fundamental principle applied by successive Lord Chancellors is to appoint to each judicial post the candidate who appears to him to be the best qualified to fit it and to perform its duties, without regard to sex, religion, ethnic origin or any perceived political opinion. Professional ability, experience, standing, character and integrity are the criteria, coupled with the requirement that the candidate must be physically capable of carrying out the often quite tiring duties of the post.

The hon. Member asked whether the Lord Chancellor has appointed sufficient women judges, or sufficient judges from the ethnic minorities. He has argued that the judges are drawn from a narrow class and that they are insufficiently representative of the population as a whole. The Lord Chancellor would certainly not reject out of hand the notion that in a diverse society those with the responsibility of appointing or recommending appointment to positions of influence and responsibility should be astute, where they can, to make appointments that command the confidence of, and thus where appropriate reflect, the composition of society as a whole. He would therefore readily accept the desirability, where suitable candidates presented themselves, of seeking to make more such appointments, but I do not understand the hon. Gentleman to be arguing—even if he were, I should not be able to agree with him—that this should be the primary criterion.

The prime consideration at every level must be that the judiciary should be appointed from among those best qualified to do the job in question—to carry out judicial tasks. For this, the first requirement, supplemented and combined, of course, with the necessary qualities of character, standing and integrity, must be tried and tested knowledge and experience of the law and practice of our judicial system.

Most of our courts, unlike those on the continent, operate by means of the adversarial system. The judges must, therefore, have the qualities of a skilled umpire between contesting parties, but he or she must have more than that: the judge must have both the detailed knowledge of the law and the necessary analytical faculties to identify and isolate, whether for himself or for a jury, the essential features of a case. He or she must have a knowledge of the rules of evidence and understanding of proper practice, the facility of courteous explanation and the power of judgment—qualities which can normally be gained only by long and dedicated experience as an advocate in the courts. These qualities are not called for as mere artificial barriers or disguised exclusions based on prejudice. They are genuine requirements. In a criminal case, to allow one inadmissible question can abort a trial.

The prime requirement for our judges, therefore, is the ability to manage trials skilfully, to preside effectively without intervening too much and to produce sensible, just and legally valid decisions. To do this requires long years of experience in successful practice as an advocate—normally at least 10 years is appropriate and, for the more senior and taxing appointments, even longer is desirable. Without such a background, the judge will simply not have the experience to do the job properly and he or she will not command the respect and confidence either of the advocates or of the litigants who appear before him or her.

This need for essential experience has a number of important implications for judicial appointments. It means primarily that the composition of the Bench at any one time is to a great extent dependent on the composition of the legal profession in the age groups from which appointments can reasonably be drawn. I cannot help observing that if the ethnic minorities have increased from 3 to 5 per cent. in the 10 years since the previous census, that increase of 2 per cent. must be composed to a considerable extent of people under the age of 10—a little early, I think, for judicial appointment!

That is the principal reason why, at the moment, more women or more members of the ethnic minorities have not already been appointed to the Bench. The Lord Chancellor has stressed time and again, and I am happy to repeat it today, that he is personally anxious to see more women and more members of ethnic minorities appointed to the Bench. But he cannot properly appoint to positions of such responsibility people who do not have the necessary qualities to do the job; and it is a simple fact that, at present, there are not enough women or ethnic minority candidates in the legal profession in the appropriate age groups and with the right experience for him to be able to make many such appointments. Nothing would be worse for the reputation of the judiciary—nor would it be fair either to women advocates or to advocates from the ethnic minorities—than for the Lord Chancellor to lower the standards for appointment to the judiciary simply to ensure a different racial or sexual mix. The Bench in 10 or 20 years' time is likely to look very different in terms of racial and sexual composition from the way it looks today.

I revert therefore to the way in which the Lord Chancellor makes his decisions. His aim is to do so on the basis of the widest and fullest possible consultation with the senior judiciary and leaders of the Bar. The purpose is to obtain the verdict of the professional community on each candidate, in so far as there is one. The main method of consultation is by organised rounds of regular consultations with all Supreme Court judges and Law Lords and by annual meetings with a broad cross-section of the circuit bench, including all the resident and designated judges, and with the leaders of the circuits and the Bar as a whole. Particular efforts are now made to seek out views on solicitor candidates for appointment. That can sometimes be difficult, as they may not be seen so frequently in court, but the Lord Chancellor makes appropriate allowances for that when reaching his decisions. It is perhaps worth stressing what, again, the Lord Chancellor has said on many occasions: he is anxious to encourage more solicitors to put themselves forward for judicial appointment when they have reached the appropriate age and standing.

The breadth of the Lord Chancellor's consultations enables him to apply another important principle in the modern system. As far as possible, he avoids making final decisions about a candidate on the basis of the advice of any one person, however senior. That is a safeguard against both favouritism and personal prejudice.

As a result of those continuing consultations, the Lord Chancellor's Department holds a large and growing body of information and opinions about several thousand lawyers and judges. In so far as the material consists of facts about them, they are treated as entitled to be told what it consists of and, if necessary, to correct it. If the material consists of expressions of opinions—as much of it does—about a candidate's work and his suitability for appointment, it is treated as confidential.

In addition to the regular and extensive process of consultation, the Lord Chancellor regards certain senior judges as having a special voice as his advisers on certain appointments. In particular, the Lord Chief Justice and the other heads of division have that position in relation to appointments to the High Court, and the presiding judges of each circuit have it in relation to the appointment of recorders and circuit judges. However, in the end, the responsibility for all those appointments is the Lord Chancellor's alone, and he alone makes the decisions on whom to recommend for each of them.

The hon. Gentleman has suggested—it is by no means a new suggestion—that some sort of commission should be appointed to replace the Lord Chancellor's role in advising on judicial appointments. But how will a commission be in a better position to appoint women or members of the ethnic minorities to the judiciary? At the end of the day, a judicial appointments commission will be working with the same raw material in terms of candidates for appointment that the Lord Chancellor is now and, unless the hon. Gentleman is seriously arguing that judges should not be appointed on merit but on the basis of some artificial quota, a judicial appointments commission will not be able to make any significant difference to the number of such candidates who can be appointed.

The position is, however, improving, or perhaps one should say developing, as the House would hope, as both women and ethnic minority members become more established and senior in the profession. Over the past 10 years, the proportion of women called to the Bar has risen from 24 per cent. in 1977–78 to 37 per cent. in 1987–88. Among solicitors, the proportion of women admitted has likewise risen over the same period from 26 per cent. to 45 per cent. and it may already this year have reached 50 per cent. There are no comparable statistics for the ethnic minorities, although the numbers are increasing. In the past two years, the Lord Chancellor has recommended the appointment of two black silks in each year. As their seniority progresses, we can look forward to women practitioners and practitioners from the ethnic minorities playing an increasing and valuable role in the ranks of the judiciary.

Ambulance Dispute (Protest)

On a point of order, Madam Deputy Speaker. At the beginning of each Session we pass an order to protect people's rights of access to the House. I seek your assurance that that will be guaranteed for those who are outside now. There is currently a protest in Parliament square by ambulance personnel. The protest is on the move, but it has not interrupted the traffic and it is not meeting any public opposition. I want an assurance that they will be allowed to continue, provided that they keep moving, that they will not be moved away and that the police will not over-react. While the House is still sitting it is important that we have a clear ruling that they are within the law and can make a peaceful protest. It must be stated that, provided that they are not stationary and do not block the traffic, they are within their rights to carry on that protest for as long as they reasonably wish to do so.

The hon. Member is a man of honour so, of course, I accept what he says. I am not there to see the demonstration. I shall have the matter looked into. I am sure that what the hon. Member says is correct.