Examination of witnesses
Rt Hon Professor Lord Kakkar and Lord Justice Burnett.
Q1 The Chairman: We are grateful to for you coming again, Lord Kakkar, and we are pleased to meet you, Lord Justice Burnett. We have a number of questions we would like to ask you and, if you are happy, we will go straight into them. Can I preface the first one by reprising a question we asked at a previous session, Lord Kakkar, about the fact that you are chairman of the House of Lords Appointments Commission and the Judicial Appointments Commission? Last time you answered it in the context of the pressure on your time and how you had sacrificed some outside interests. What about the way they work together? Is it beneficial, or are there conflicts and difficulties? How do you see any matters arising that might be of interest to us?
Lord Kakkar: So far there have been none. The House of Lords Appointments Commission is advisory to the Prime Minister. As I explained previously, we have the responsibility for vetting for propriety in HOLAC all nominations made, either the political nominations or those who come through the HOLAC system, ministerial nominations and so on. In addition, with regard to appointments to the independent Cross Benches in the House of Lords, we run a process that looks at the suitability of candidates. I have found no overlap between the JAC and HOLAC in that regard.
Q2 The Chairman: Thank you very much. That is helpful. Moving straight into the questions we wanted to get on to, the Judicial Appointments Commission has found itself unable to find candidates to fill vacancies, we hear, and the Lord Chief Justice has said the matter is now very urgent. Do you think that remuneration is the key factor or are there other factors as well?
Lord Kakkar: Lord Chairman, remuneration is clearly an important factor given what we see from the judicial attitudes survey, for instance. I should say at the outset that we still receive a large number of high‑calibre candidates coming forward in the various competitions that we run. However, we have seen a worrying trend in our inability to fill certain important vacancies. We have seen those in three exercises with regard to appointment to legal posts, on one occasion for appointments to circuit judge positions, and on two occasions now for appointments to the High Court. Those trends are very worrying.
The reality is that in the 2015 High Court exercise we were unable to fill one vacancy. In the 2016 exercise, we were unable to fill six vacancies. At the moment, we are in the process of running a competition to fill 25 High Court positions. If one looks at the trend in the two previous years, there could be a serious shortfall in our ability to nominate candidates to fill those positions.
One thing we are very clear about is that we will not drop the quality bar that is set for appointment to the judiciary. If we do not have quality candidates available to us, we will not be able to make the nominations and those positions will go unfilled.
With regard to appointments to the circuit and High Court Benches, first, we have seen over a five‑year period fewer applicants, and, secondly, of those who finally end up being considered appointable—the A and B candidates, the outstanding and good candidates—the number becomes smaller on each occasion, and that is why we are unable to fill those vacancies. There is a serious issue here.
The Chairman: Lord Justice Burnett, would you like to add anything from your perspective?
Lord Justice Burnett: I simply echo what Lord Kakkar has said. It is very well known that there have been problems in recruiting sufficient High Court judges. I suspect it is less well known, albeit it is in the public domain, that the JAC ran into problems in recruiting circuit judges last year. The request was for 55 circuit judges, and, from memory, only 44 were selected for appointment. Another circuit judge competition is going to open within the next month or so. The final numbers being sought have not been identified, but it is going to be very many more than the 55 we were seeking last year. In addition to the High Court position, which attracts a lot of attention, understandably and rightly so, there seems to be a growing problem at the circuit Bench level, which is the workhorse, if I can put it that way, of the courts judiciary system.
The Chairman: One cannot help asking why. Is there one specific reason? Is it a series of coming‑together factors?
Lord Justice Burnett: I need to be careful not simply to reflect my own view in this.
The Chairman: Why not?
Lord Justice Burnett: I am here speaking for the JAC, but I am sure all your fellow members on the Committee will have seen the judicial attitude survey, which identifies a broad range of dissatisfactions among the sitting judiciary, both in the courts judiciary and the tribunals judiciary. Pay and rations, if I can put it that way, are undoubtedly a very significant factor indeed, but not the only factor. There is a sense, certainly among senior practitioners, that the job of being a senior judge has become less attractive for a wide range of issues. There is no magic bullet, as it seems to me. There needs to be a great deal of work done by a wide range of people—government and the senior judiciary—to try to sort it out.
The Chairman: We have heard evidence elsewhere, for example, that immigration is enough to reduce many judges to a nervous breakdown simply because the legislation is so massive and hard to penetrate. Is that a factor in your view as well, going broader than just immigration, but legislative quality as well?
Lord Justice Burnett: Immigration is a particular problem for us in the Court of Appeal because there is a very large number of unsuccessful applications for permission to appeal from both the High Court and the Upper Tribunal, which occupy a great deal of our time, and many of them are very poorly put together indeed. However, I do not think that is necessarily a problem across the whole range of the judiciary.
Lord Judge: What are the other issues that appear to the JAC to be making recruitment difficult, beyond remuneration?
Lord Kakkar: Beyond remuneration, we see in the communications that we receive and from the judicial attitude survey that the judiciary does not feel valued.I think that is a very serious concern, and also that the working conditions for judges are now very difficult. Again, that is a demotivating factor.
The question of remuneration has already been covered, but I was also very interested, and had conversations about this, in the concern that some judges have about their personal safety. Those are issues that need to be addressed. The JAC does not control the levers for many of these issues, but we can identify them and communicate them as we are doing here before this Committee, and indeed we do through communication with the Lord Chief Justice and the Lord Chancellor. That is an important part of our responsibility.
Overall, the trend suggests that it is becoming more difficult to appoint to the judiciary, certainly in the High Court and, as we have heard from Lord Justice Burnett, the circuit court. We need to be sensitive to that because we are running very large competitions: as I have said, 25 appointments requested to the High Court this year; the figure is yet to be confirmed, but it is something between 120 and 140, potentially, to the circuit court; and, again to be confirmed, maybe as many as 80 to the district Bench. These are very large numbers, representing something between 20% and 25% of each of these benches. Under those circumstances, all the issues that one hears about need to be addressed by the different parts of the system that have the levers to be able to deliver resolutions to the problems that are causing anxiety.
Lord MacGregor of Pulham Market: We will come back to pay and rations, which is obviously one of the ones at the top. How much work have you done to identify exactly what the gaps are? Are people having to take a substantial decline in pay and rations to become a judge? How much research have you done to know what should be recommended to put it right?
Lord Kakkar: I am going to turn in a moment to Lord Justice Burnett, but certainly together we have been to give evidence to the Senior Salaries Review Body before Christmas. The SSRB is taking forward its quinquennial review and requested that we provide a commissioner to provide detailed input and evidence to that process, and to help it do that process. We have nominated a commissioner, Professor Noel Lloyd, who is serving on that advisory board for that particular activity. We are doing things to try to inform accurately this specific question so that a proper resolution can be achieved.
Lord Justice Burnett: The JAC itself does not collect data from applicants on their current earnings. That is not something that is asked on any application form. When I was appointed to the High Court Bench, which was in 2008, the SSRB made some inquiries of my cohort of appointees to determine the average difference between judicial remuneration and earnings as a practitioner before appointment to the High Court. It was inevitably very large indeed. Certainly, at the High Court level nobody applies for the job unless they have a sense of public duty. That is the reality. Whether the SSRB has done anything since, I am afraid I am not able to tell you, but it is something that they may be looking at, for all I know, as part of the quinquennial review to which Lord Kakkar has referred.
Q3 Lord Norton of Louth: In our 2012 report on judicial appointments, one point we made there was: “There needs to be a greater commitment on the part of the Government, the judiciary and the legal professions” to recruiting from lawyers who are not barristers. As we said then, “Being a good barrister is not necessarily the same thing as being a good judge”. To what extent has there been, if there has, an increase in applications from non‑barristers, and is this a route you are actively pursuing given the problem you have identified about recruitment?
Lord Justice Burnett: As a result of intensive outreach work, we have seen a significant increase in the number of applications by solicitors for senior appointments—that is, appointments as deputy High Court judges, High Court judges and circuit judges—but, overall, the number of applications from solicitors has remained broadly static since your report in 2012. That said, one should remember that over half of tribunal judges are, or were, solicitors, and over a third of courts judges are or were solicitors. Overall, the picture is that about half of all judges are or were solicitors.
I looked at your 2012 report, inevitably, and was struck by the fact that this Committee identified one particular problem that the JAC continues to believe is a significant factor. The major reason you identified was that many solicitor applicants were put off by the attitude of law firms themselves. I repeat that with some diffidence in front of Lord Hunt, but, none the less, that was the conclusion of the Committee and is something that, as members of the JAC and more generally, we continue to hear a great deal. The reality is that those applying particularly for part‑time appointment are likely to do so in their 40s, which is a time when most professionals are at the height of their earning power and thus it is not necessarily welcome to the partners of a big law practice to see somebody devoting time elsewhere and to sense that his or her ambitions are moving in a different direction.
That said, a vast amount of work has been done by the JAC—and, it has to be said, others—to try to encourage more solicitor applicants. We have, as you know, a dedicated solicitor member of the JAC; the statute provides that. As it happens, two of our judicial members are also former solicitors and, as it further happens, former presidents of the Law Society, so we have a very strong voice for encouraging solicitors. Each of those members, and in fact all of us, spend a great deal of time engaging with solicitors, both through the Law Society and firms, speaking directly to solicitors, writing articles and so forth, to try to encourage further applications.
Lord Norton of Louth: You mentioned that the level of applications since 2012 had not changed significantly. What about the proportion of those who are successful who apply?
Lord Justice Burnett: That varies enormously from competition to competition. There are some judicial jobs for which, as I have indicated, solicitors are by far in the majority, and their success rate in applying for those jobs is very high indeed. Where it has not been high is in applications to be deputy High Court judges and High Court judges. That is the reality. Why that is so is something that our officials have been working very hard to try to discover but have simply not been able to find a reason.
Lord Norton of Louth: Could that be one of the things that is still a deterrent—not just the firms but the fact they are not succeeding at that level?
Lord Justice Burnett: Undoubtedly, that is a possibility, and I think it would be unwise of me to speculate as to quite why it is so, but there is inevitably the possibility that in any environment where outreach work is successful—that is to say one encourages a large number of additional applications—some of the applicants will not in fact yet be qualified or ready for the job that they have applied for; but that is very difficult to demonstrate empirically.
Lord Norton of Louth: You say that, so far, the level of applications has not increased, but you have been putting a lot of effort into the outreach work. Is there any evidence or any initial indication that that is proving successful?
Lord Kakkar: As Lord Justice Burnett has said, we see the numbers of solicitor applications as important, because this reflects the fact that our pool of those with a legal professional background is becoming more diverse. One issue we are concentrating on—and this is part of the work that the JAC does with the judicial diversity forum—is to ensure that there are tools and professional development opportunities available earlier in an individual legal professional’s career to help them think about eventual judicial appointment and develop themselves over a period of time to make a successful application. Rather than just announcing a competition and people having a few weeks to apply, it is far more important that, over a period of time prior to that, they have been given the opportunity. My sense is that many of those coming from the broad range of legal backgrounds are potentially not working in environments where they are either prepared or supported for judicial appointment application.
The JAC cannot run a programme or process to prepare for appointment. That is not our role; ours is to run the process of recommendation for appointment itself. But what we can certainly do and are doing in the diversity forum is to help the professional bodies develop a curriculum working with the Judicial College and the materials available there—information that we may have available and they will have available. My hope is that they will provide programmes of professional development for their own members so that, over time, they will feel more confident about application and will be making applications that are more likely to succeed.
Q4 Lord Hunt of Wirral: In view of Lord Justice Burnett’s comments, perhaps I should stress how much certainly my firm and many other similar firms seek to encourage people to make an application, and we take great pride when several of my partners have been successful. But I take the point that perhaps I might have further discussions with the president of the Law Society about how we might embark on a more proactive attempt to encourage solicitors to come forward.
My particular question was that, in that report referred to by my colleague, we did say that the retirement age for Court of Appeal and Supreme Court justices should be raised to 75 from 70, and we note the recruitment exercise for the next Lord Chief Justice requires candidates to serve for at least four years, effectively excluding those over 65 and excluding two particularly well‑known candidates, one of whom is an outstanding female candidate. Do you think this is a sensible restriction and what is your view of the proposal?
Lord Kakkar: The retirement age is a matter for Parliament—it is set out—and the Judicial Appointments Commission respects that view. There are arguments, I think, on both sides on the retirement age. On the one side, clearly having a fixed retirement age provides the opportunity to ensure that there are not questions about performance or health of judges as they become very old and potentially not able to perform. On the other side of the argument, quite clearly a large number of talented people are retiring at 70 when, with all the challenges facing the judiciary, there may be a strong argument for them to remain on the Bench and continue to serve. The argument put against that is that, if one does that, one blocks a number of potential positions for an increased period of time and the ability to drive forward diversity through new appointments is diminished.
Therefore, this is a matter that is worthy of debate and is something that Parliament and government will need to consider again. All I can say is that, when that decision is taken, the JAC will deal with whatever decision is taken and apply it accordingly.
Lord Hunt of Wirral: But there is no legislative requirement that you have to serve at least four years. Is that not an unnecessary restriction?
Lord Kakkar: As you will be aware—and in fact the 2012 report on judicial appointments made it very clear—each of these senior appointments commences when the panel meets the Lord Chancellor and receives from the Lord Chancellor advice at the beginning of the process. Thereafter, the process runs completely independently and the panel will come forward with a name, which is then given to the Lord Chancellor at the end of that process. If a Lord Chancellor expresses a view about criteria or requirements for reasonable length of service, it has always been the case that the reasonable length of service question is respected.
The Chairman: Do you wish to add anything, Lord Justice Burnett?
Lord Justice Burnett: No, I do not think so; thank you.
Q5 Lord Maclennan of Rogart: The percentage of female judges is very low. It is gradually increasing, but what would you do to stimulate this gender diversity?
Lord Kakkar: If we look at the figures, in 2016 the number of female judges in the courts increased from 25% to 28% over 2015‑16, and in tribunals from 44% to 45%. Of course, noble Lords will be aware that our statutory duties are to make recommendations for appointment solely on the basis of merit and to encourage diversity in the range of persons available for selection, and we are very committed to those duties.
To ensure that we have the most diverse possible pool, levers are available to us in our outreach work in trying to stress, for instance, that appointments are attractive to female candidates. One important area in that regard is the opportunity for part‑time working, but we are also conscious of the fact that we are looking at the potential pool, and only 17% of QCs and 19% of law firm partners in private practice are female. So, the professions have a very important role to play as well in delivering a sufficiently broad pool that we can then encourage and provide the tools to help with regard to application and preparation for application.
In the diversity forum, we are addressing this issue very actively. As I said earlier, we are looking at working with the professional bodies to ensure that they can help in this matter, because it is they who represent their professional members. We are looking at developing tools that will aid in preparation for an ultimate application for judicial office, and we continue to engage on the broader issue—that is, the professions also have to reflect more broadly in such a way that that pool can offer itself for public service through judicial appointment.
Lord Maclennan of Rogart: What would the remuneration do to stimulate this take‑up?
Lord Kakkar: I am not sure I have seen any evidence of a differential impact of remuneration on the attractiveness of judicial appointment for male or female candidates. I do not know if we have seen that at all.
Lord Justice Burnett: No.
Q6 Lord Brennan: I have some questions about black, Asian and minority ethnic categories—BAME. I have had a look at your diversity statistics and they appear to show that the BAME rate of appointment has increased for tribunals and magistrates in recent years but not for the Crown Court, which has been static, apparently, for the last four years at 6%. Is there an explanation for that and how are you dealing with it? Secondly, a lot of us in Parliament who are dealing with diversity issues often wonder what the actual frameworks are of things with which we are dealing. For example, out of your BAME appointments, how many applications are made and what is the rate of appointment—one in three, one in 10, or what is it? Thirdly, what is the general available cohort of barristers and solicitors, for example, of BAME in relation to this range of appointment?
Lord Kakkar: As to the question of the level of recommendation for candidates, basically, of the eligible pool of individuals with five to seven years’ experience who declare in this regard, there have been 400 recommended candidates – that is 10%, which is in line with the eligible pool.
As to how we are doing, there is, as you rightly identify, variation. If we look overall at recommendations in 2015‑16, 9% of all candidates recommended were BAME candidates, but it is higher in some exercises. So, 18% of all recommended candidates for the District Judge (Magistrates Court) were BAME compared with an eligible pool of 10%. If one looks at deputy High Court judges, 11% of all recommended candidates were BAME, and if one looks, for instance, at a non‑legal valuation tribunal chairmen and members exercise, 27% of candidates recommended were BAME. We see some variation. We have looked very carefully—and Ian will pick up on this—at our processes to determine whether there is more that we can do.
Lord Justice Burnett: The whole question of appointment of different percentages of ethnic minority candidates to different roles needs to be looked at rather more subtly than a lot of commentators look at it. Lord Kakkar has referred to the eligible pool, which is really a term of art that simply reflects those who are statutorily qualified to make the application. That eligible pool is very different in reality from those who are suitably experienced and qualified at their stage of life as a lawyer to think of applying successfully. That is something that needs to be borne in mind. It is something I notice was picked up by the Committee in its 2012 report. I regret that it was picked up by too few commentators.
Secondly, although the statistics that are available—and they are largely from the Law Society and the Bar—are not perfect, there is a reality that lawyers from ethnic minorities are overrepresented in some areas of practice and underrepresented in others. That may well be part of the explanation why, for example, an apparently very good rate of appointment is achieved in some tribunals and as deputy district judges in the magistrates’ court, because that is where quite a few of those ethnic minority lawyers are practising. That is a factor that, again, is often not fully appreciated.
The third issue, it seems to me, is education. If I can just take a very simple example, most of us in the Court of Appeal are in our late 50s or early 60s, and so one needs to be looking back at what was happening in schools and universities quite a long time ago to see how people were being educated and brought through the system.
The fourth issue, which as it seems to me powerfully links with that third, is social mobility. The law, unlike medicine, for example—I say this with a distinguished surgeon next to me—is not readily transferable between jurisdictions. A distinguished surgeon trained in any country in the world could come and be a distinguished surgeon here with relatively little difficulty. The same is not true of lawyers. The reality is that, if one looks at the BAME cohort, the make‑up in society today is very different from what it was even 10 or 20 years ago, which might be the time when part‑time judges were doing their law degrees and entering practice, or 30 or 40 years ago, when those who might be looking for appointment to the High Court or Court of Appeal were training as lawyers and coming through the system. My own perception of this is that it is more complicated than often people recognise.
The proportion of BAME candidates succeeding in all our competitions has gone up substantially, and I would commend to the Committee, if somebody can look it out for you, the trends, rather than snapshot statistics, over 10 years for both female and BAME candidates, which are all available for those with the energy to find them.
Lord Brennan has put his finger on an issue, namely a disproportionate failure rate, if I can put it that way, between those applying in some competitions and those succeeding. The JAC, both internally and with the assistance of outside consultants, has looked time and again at the selection processes to see whether there is anything in those processes that might be responsible for that disproportionate success rate. So far, nothing has been found—nothing at all—and those behind me and the consultants they have engaged have been searching high and low for some time. We have a reasonable confidence—I put it no more highly than that—that the processes that the JAC operates are not themselves responsible for the feature that Lord Brennan identified.
Q7 Lord Judge: Do either of you want to add anything to what you have said about the work of the Judicial Appointments Commission in collaboration with the Judicial Diversity Committee? Is there anything more you want to add to that?
Lord Kakkar: I chaired the last meeting of the Judicial Diversity Forum and have made it clear I am very happy to continue to do that. The Judicial Diversity Committee is part of that forum and is very actively represented there, as are the legal professions and the Ministry of Justice. It is a particularly important forum and is doing some very useful work at the moment.
I have mentioned the question of pre‑application judicial education. This is vitally important. We are very actively doing this through outreach. For instance, in the last Deputy High Court exercise, the Lord Chief Justice and the President of the Law Society very kindly wrote to partners in leading law firms encouraging application from solicitors. If we are going to do that, we need to ensure that the tools are available for people to prepare themselves properly. There is a piece of work being undertaken by a working group chaired by Lord Ouseley that is looking at all of that. I very much hope that we will be able to strengthen within the JAC our ability to contribute to the development of materials that will assist in application.
We are also very committed to outreach, and the forum represents an important opportunity for the different bodies, many of whom have a much more influential locus in driving the opportunity for increasing the diversity of the pool of potential applicants to come together. The Lord Chancellor is represented there. I very much hope that that forum will now start to focus on very practical steps to help people both understand what it is to be a judge, because many in the legal profession do not have a clear understanding of whether they are the kind of person who might serve on the Bench, and then to prepare themselves for the application process, understanding what that service would ultimately mean.
One thing we have not touched upon that is also quite important, though not necessarily in the remit of the diversity forum, is ensuring that there is a proper career structure for those who have already been appointed, such that they themselves understand how well they are performing. This was raised in the previous report of this Committee in 2012. Their development as judges at different levels of the judiciary means that, while the promotion of judges cannot be automatic, there should be a much clearer pathway for promotion in the judiciary. That will mean that our processes can be simplified and that we have evidence about their ability to have performed as judges at whichever level in the judiciary they are working and can take that into account as they seek promotion through the judiciary. That will be an important part of fulfilling the remit and ensuring that those who have come from more diverse legal backgrounds, for instance, and from a broader pool of potential applicants, are given the support earlier in their judicial careers to develop and go on to perform in more senior judicial roles.
Q8 Lord Morgan: I thought I might exploit the fact that today is Dydd Gŵyl Dewi—St David’s Day. We have a requirement, as you well know, that there should be a judge in the Supreme Court who has a particular expertise in Scottish law, and that is totally understandable. There is no such requirement in relation to Wales. However, Welsh law is increasing in volume, and it is likely to increase considerably more after the recent Wales Act and the change in the powers of the Welsh Assembly and government. There is a possibility—I would have thought quite a good possibility—of there being a distinct Welsh jurisdiction in the course of the next few years. What do you feel, gentlemen, about this? Do you feel that something might be promoted in terms of what might be considered as this national inequality?
The Chairman: Who would like to start with this highly controversial question?
Lord Kakkar: If I may, Lord Chairman. My first visit on having taken up appointment as chairman of the JAC was to Cardiff to meet the First Minister and I had a very good conversation. Clearly, as things stand at the moment, we have a single jurisdiction of England and Wales, but we have an increasingly independent body of law developed in Wales, and for English‑only matters an English-only body of law being developed in this Parliament; so, this is a very important question.
As to the work of the JAC, I took the decision that we should have a commissioner with particular and specific interest for Wales keeping us fully abreast of developments such as the ones that have been mentioned. Those issues can be brought forward and debated when the JAC board meets every month as necessary. That is what we have done and I have appointed Professor Noel Lloyd to that particular position. There are reports regularly back now to the Administration in Wales as a result of that, or when it is necessary to do that.
As to judicial appointment in Wales, we are cognisant of and look at the question of the Welsh dimension when testing for judicial appointment in Wales, and we have our own bespoke Welsh‑language scheme as well.
With regard to the question of appointment to the Supreme Court, that is a matter that would need to be more broadly considered by Parliament in terms of having a specific requirement for one justice to come from the Welsh jurisdiction as the developments you talk about develop, but it is not the case at the moment.
Lord Justice Burnett: I have nothing to add on the Supreme Court. That is well outside my jurisdiction, as it were, but on the impact of Welsh matters on the JAC, perhaps I could add this. First, there is a small number of Welsh judicial posts that require the successful candidate to be able to conduct proceedings in Welsh, so we look for suitably qualified candidates to fulfil those posts. Second, as Lord Morgan has explained, there is a developing body of Welsh law, and some of the posts in Wales—the civil posts, in particular—require an understanding of that. Third, the Welsh dimension is an aspect that is tested in the selection process, as is a general understanding of the different constitutional, political and legal position of Wales by those who are going to be appointed to particular positions in Wales.
The Chairman: That is helpful; thank you.
Q9 Lord MacGregor of Pulham Market: We have already touched on quite a number of points in relation to the selection process, but very specifically can I ask you this? In our 2012 report this Committee recommended that “all selection panels should themselves be gender and, where possible, ethnically diverse”. To what extent has this been the case? Lord Justice Burnett made some very interesting comments on the appointments process, but, more specifically, we recommended in our Committee report that “All those involved in the appointments process must be required to undertake diversity training”. Has that been implemented?
Lord Kakkar: Yes. As to the panels, to deal with the second point first, all our lay panel members receive diversity training. This will happen again very shortly when we bring forward our new panel members later this week. We now have 65 lay panel members, of whom 62% are female; 6% are BAME; 3% are disabled; and we also have two Welsh‑speaking panellists. We have tried, in the diversity of our lay membership of the panels, to achieve that. We have 108 judges in the pool, and, of them, 35% are female, 8% are BAME and 42% are solicitors. Again, we have reasonable diversity there. As to the training, as I have said, all are trained in this particular aspect, and judges are also as part of their own training.
Q10 Lord Beith: Since 2014, you have had an “equal merit provision”, which I must say I have never fully understood, under which, if you have two candidates of equal merit, you can make the decision to choose one of them because that candidate satisfies the diversity provisions. The figures we have suggest that it has been used in about 5% of cases. I was wondering whether that level is more or less what you expected. I also began to wonder whether it was a sort of tick‑box exercise and if you had two candidates of equal merit why you would not choose somebody who added something to the particular part of the judiciary that was lacking, but if he or she turned out to be in the BAME category you would just tick the box and say that was an equal merit case.
Lord Justice Burnett: I do not think the JAC had any expectations about how often the equal merit provision would fall to be used. Its history is in fact set out in the 2012 report. It came from a recommendation of this Committee, in large part. It has been applied now, I think, 21 times. It has been applied in a large number of competitions, even though the numbers of judges who have been appointed using the provision remain relatively small. If one, say, has a request to recommend 10 people and there are nine who—on merit, which is the statutory criterion—are obviously the first nine to be recommended, but there are three or two whom the commission really cannot choose between on the basis of all the material available to it, it is in those circumstances that the equal merit provision will be applied.
It is applied at the moment only to gender and ethnicity, because those are the protected characteristics in respect of which relatively robust statistics exist, which means that its application would not be arbitrary. That is how it works. Both Lord Kakkar and I have sat on selection committees that have applied it. It was one of the more interesting new experiences that I had when I became vice‑chairman of the JAC, now 15 or 16 months ago, and its application does not cause us very much difficulty, because once one has come to the conclusion that two or three candidates are in truth of equal merit, in the sense that there is no easy way to choose between them—each of them would be as well able to do the job as the other—then we are told the ethnicity and gender of the candidates, and if one of the candidates is from the underrepresented group that is the recommendation we make.
The Chairman: Would you like to come in?
Lord Kakkar: Can I come back on Lord Beith’s question? I do not think I was absolutely clear about the training, and I wanted to be. The judges in our process take part in the panel briefings, and many are in the standing pool and therefore attend our annual training event; and then all judges receive their diversity training as part of their judicial induction package from the Judicial Office and the Judicial College. We run our event for all our lay members, which judges can also attend. Everybody receives panel briefings at the outset of the panel to remind them about this and then judges have their own particular diversity training as part of judicial appointment.
The Chairman: Can I say that you have both demonstrated impressive mastery of your briefs and have given us a large number of statistics and things to think about? Is there anything that you wish we had asked you that we have not yet done so?
Lord Kakkar: No, Lord Chairman. You have been a marvellous Committee.
The Chairman: I am very relieved to hear that. It has been a very useful session. Thank you both very much.
