House of Commons Justice Committee
Appointment of the Chair of the Judicial Appointments Commission
Second Report of Session 2010–11
Report, together with formal minutes and oral evidence
Ordered by the House of Commons to be printed 31 January 2011
HC 770 Published 7 February 2011 by authority of the House of Commons London: The Stationery Office Limited £8.50
Justice Committee
The Justice Committee is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies (including the work of staff provided for the administrative work of courts and tribunals, but excluding consideration of individual cases and appointments, and excluding the work of the Scotland and Wales Offices and of the Advocate General for Scotland); and administration and expenditure of the Attorney General's Office, the Treasury Solicitor's Department, the Crown Prosecution Service and the Serious Fraud Office (but excluding individual cases and appointments and advice given within government by Law Officers).
Current membership Rt Hon Sir Alan Beith (Liberal Democrat, Berwick-upon-Tweed) (Chair) Mr Robert Buckland (Conservative, South Swindon) Christopher Evans (Labour/Co-operative, Islwyn) Mrs Helen Grant (Conservative, Maidstone and The Weald) Ben Gummer (Conservative, Ipswich) Mrs Siân James (Labour, Swansea East) Rt Hon Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd) Claire Perry (Conservative, Devizes) Yasmin Qureshi (Labour, Bolton South East) Mrs Linda Riordan (Labour/Co-operative, Halifax) Elizabeth Truss (Conservative, South West Norfolk) Karl Turner (Labour, Kingston upon Hull East)
Powers
The committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the internet via www.parliament.uk.
Publication The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/justicecttee . A list of Reports of the Committee in the present Parliament is at the back of this volume.
The Reports of the Committee, the formal minutes relating to that report, oral evidence taken and some or all written evidence are available in a printed volume. Additional written evidence may be published on the internet only.
Committee staff The current staff of the Committee are Tom Goldsmith (Clerk), Emma Graham (Second Clerk), Hannah Stewart (Committee Legal Specialist), Gemma Buckland (Committee Specialist), Ana Ferreira (Senior Committee Assistant), Henry Ayi- Hyde (Committee Support Assistant), and Nick Davies (Committee Media Officer).
Contacts Correspondence should be addressed to the Clerk of the Justice Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 8196 and the email address is [email protected]
Contents
Report Page
1 Introduction 6
2 Judicial Appointments Commission 7 Background 7 Purpose 7 The future of the JAC 7 The Post 8 The Candidate 8
Appendix A 9 Posts which are subject to pre-appointment hearings before the Justice Committee 9
Appendix B 10 Letter to Baroness Jay of Paddington, Chairman of the House of Lords Constitution Committee, from Rt Hon Kenneth Clarke QC MP, Secretary of State for Justice and Lord Chancellor, 4 January 2011. 10
Appendix C 14 Advert for the position of Chair of the Judicial Appointments Commission 14
Appendix D 15 Person specification 15 Essential qualities 15 Desirable qualities 15
Appendix E 16 Curriculum vitae—Christopher Stephens 16
Formal Minutes 18
Witness 19
List of Reports from the Committee during the current Parliament 19
6
1 Introduction
1. The introduction of pre-appointment hearings was recommended in the Liaison's Committee's report, Shifting the Balance Sheet: Select Committees and the Executive, published in 2000.1 Although initially rejected by the Government, the Governance of Britain green paper of 2007 proposed scrutiny of prospective appointments as follows: "…the hearing would be non-binding, but in the light of the report from [a] committee the Minister would decide whether to proceed. The hearings would cover issues such as the candidate's suitability for the role, his or her key priorities, and the process used in selection…".2
2. A list of posts proposed by the Government as suitable for pre-appointment scrutiny was published (without endorsement) by the Liaison Committee in 2008. The appointments from that list under the aegis of the Ministry of Justice and the Attorney-General's Office are set out as Appendix A and includes the Chair of the Judicial Appointments Commission.
3. The Coalition Agreement, published on 20 May 2010, stated that, along with cutting the number and cost of quangos, the Government planned to increase scrutiny of public bodies. This would include giving Select Committees the right to hold ‘confirmation hearings’ for major public appointments including heads of non-government public bodies. While it is not yet clear whether the Coalition Agreement proposal means that committees will get the power of veto over some appointments as is the case for Senate ‘confirmation hearings’ in the United States, the Chancellor of the Exchequer has told the Chair of the Treasury Select Committee that the Government will legislate to give the Committee a veto over the appointment of future Chairs of the Office of Budget Responsibility. The Budget Responsibility and National Audit Bill also contains a provision to give the Committee confirmation power over the appointment of the three-person Budget Responsibility Committee and a power of veto over the termination of such appointment.3
1 Liaison Committee, First Report of Session 1999–2000, Shifting the Balance Sheet: Select Committees and the Executive, HC300 2 http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf 3 Budget Responsibility and National Audit Bill [HL] Explanatory Notes http://www.publications.parliament.uk/pa/ld201011/ldbills/023/en/11023en.htm
Appointment of the Chair of the Judicial Appointments Commission 7
2 Judicial Appointments Commission
Background 4. The Judicial Appointments Commission (JAC) is a non-departmental public body sponsored by the Ministry of Justice. The JAC was created in April 2006 following provisions in the Constitutional Reform Act 2005.
5. The JAC was intended to ensure independence and transparency in the judicial appointments process by making recommendations to the Lord Chancellor based on fair and open competition. The JAC makes recommendations for all judicial post-holders except lay magistrates and supreme court judges. The Lord Chancellor has discretion to accept or reject a JAC recommendation, or ask the Commission to reconsider it. The reasons why the Lord Chancellor can reject a recommendation or ask for reconsideration are limited and he must provide an explanation if he takes this course.
Purpose 6. The JAC describes its statutory duties as follows:
• to select candidates solely on merit;
• to select only people of good character; and
• to have regard to the need to encourage diversity in the range of persons available for judicial selection.
The future of the JAC 7. The Committee met Baroness Prashar, the out-going Chair of the Judicial Appointments Commission on 7 September 2010. The Committee had a wide ranging discussion which covered the current performance and future direction of the Judicial Appointment Commission. We offer our best wishes for her future career.
8. When the Committee took evidence from Baroness Prashar, the future of the JAC was still the subject of a review. Since then the review has been completed. The Secretary of State wrote to Baroness Jay of Paddington, Chairman of the House of Lords Constitution Committee, with the outcome of the review. This letter is published as Appendix B. The Secretary of State said that the JAC and the Judicial Appointments and Conduct Ombudsman will remain in place. However he expressed concern that:
“at times the appointments process can take too long and cost too much.”
He made a several practical recommendations, and raised a number of constitutional questions which would require legislation prior to implementation.
8
The Post 9. According to the Ministry of Justice the role of the Chair will be to:
• protect the principle of judicial independence and recruitment of judges on merit on the basis of fair and open competition;
• build and promote a culture of service delivery and value for money;
• monitor the implementation and effectiveness of the Commission’s strategy and priorities, and develop an effective partnership with the Chief Executive to ensure that the Commission delivers them;
• build and maintain strong and constructive working relationships with the judiciary, the Lord Chancellor and Secretary of State, Parliament, senior civil servants, the legal professions and key stakeholders;
• lead the Commission in its work to encourage diversity in judicial appointments;
• provide clarity of vision and strategic leadership to the Commissioners and staff as the issues identified through the review of judicial appointments are addressed; and
• be the public face of the Commission, promoting and acting as an ambassador for its work.
10. The advertisement for the post is published as Appendix C. The Person Specification is published as Appendix D. The closing date for applications was 15 November 2010.
The Candidate 11. The Ministry of Justice informed the Committee on 10 January that the Secretary of State’s preferred candidate for the Chair of the Judicial Appointments Commission was Mr Christopher Stephens. Mr Stephens currently holds a number of public and private sector roles. His curriculum vitae is attached as Appendix E.
12. We endorse Mr Stephens’ suitability for the position of Chair of the Judicial Appointments Commission and wish him success in it. We thought that Mr Stephens’ experience in the commercial sector was particularly relevant to ensuring that the JAC is an efficient organisation. We also value his experience in making appointments in the civil service but welcome his recognition that judicial appointments have special and different requirements.
13. Mr Stephens gave thoughtful and measured answers to our questions and the Committee is confident in recommending his appointment. We look forward to taking evidence from him in the future as part of our ongoing scrutiny of the Commission.
Appointment of the Chair of the Judicial Appointments Commission 9
Appendix A
Posts which are subject to pre-appointment hearings before the Justice Committee
Attorney General's Office HM Chief Inspector of the Crown Prosecution Service (subject of a pre-appointment hearing, report published as HC 244 of Session 2009–10)
Ministry of Justice Chair of the Judicial Appointments Commission (the subject of this report)
Chair of the Office for Legal Complaints (subject of a pre-appointment hearing, report published as HC 1122 of Session 2007–08)
HM Chief Inspector of Prisons (subject of a pre-appointment hearing, report published as HC 354 of Session 2009–10)
HM Chief Inspector of Probation
Information Commissioner (subject of a pre-appointment hearing, report published as HC 146 of Session 2008–09)
Prison and Probation Ombudsman
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Appendix B
Letter to Baroness Jay of Paddington, Chairman of the House of Lords Constitution Committee, from Rt Hon Kenneth Clarke QC MP, Secretary of State for Justice and Lord Chancellor, 4 January 2011.
REVIEW OF JUDICIAL APPOINTMENTS AND JUDICIAL ARMS LENGTH BODIES
On 28 June 2010, I announced to Parliament my intention to undertake an internal review of the judicial appointments process that assessed the organisation and operation of the process from end to end, addressing in particular:
• The proper balance between executive, judicial and independent responsibilities • Ensuring clarity, transparency and openness • Quality and speed of service to applicants and the courts and tribunals the process serves • Governance, efficiency and value for money
I also asked the review to consider whether the current structure of those arms length bodies supporting the Lord Chief Justice and me on judicial matters such as the Office for Judicial Complaints (OJC) and the Judicial Appointments and Conduct Ombudsman (JACO):
• best meets the needs of the constitutional settlement, properly protecting judicial independence • provides clear accountability • provides the most effective means of delivering a high quality service and value for money.
The core principles that have underpinned the review are that the appointments process must: fully respect and maintain the independence of the judiciary; hold appointment on merit at the heart of the process; deliver openness and transparency throughout the process.
I was pleased to be able to announce on 9 November the outcomes of the review. I have decided that the Judicial Appointments Commission (JAC) and the Judicial Appointments and Conduct Ombudsman will remain in place as valued independent bodies, which do much to bring openness to the way candidates are selected for judicial appointments. I have also decided that the OJC should be moved to the Judicial Office and the complaints process, which works well overall, streamlined.
Appointment of the Chair of the Judicial Appointments Commission 11
It is clear that at times the appointments process can take too long and cost too much. The first duty of the Commission is to maintain the high quality of judicial appointments but the JAC should also focus on delivering efficiency in the selection of judges, working with the judiciary and the unified Courts and Tribunals Service to do so. The vast majority of the necessary improvements to the end-to-end appointments process can be delivered through streamlining the process itself and without the need for any legislative change.
I welcome the programme of reform that the JAC now have underway and which closely mirrors the proposals identified by the review in relation to improvements to the selection process. As a result of the issues identified as part of this review, I would like the JAC to consider:
• radical organisational changes in order to reduce the cost to the public of the selection process, including:
– Commissioners should no longer sign-off recommendations collectively as a committee of 15; they should be involved in selection exercises as strategic "sponsors".
– A review of staff grading, with a view to reducing the numbers and grades of the most senior staff which in my view are high when compared to posts of equivalent responsibilities in other organisations.
– More flexible deployment of administrative staff, to respond more effectively to fluctuations in workload.
– Focus staff resourcing on selection activity and reduce the amount of resource currently invested in other corporate functions.
– Use of external providers to carry out functions, such as administration, transactional finance and organisation of test and selection days.
• developing a more flexible set of selection activity options, to better suit the scope of different types of competition, for example generic qualifying tests for "entry-level" posts and appropriate use of role play assessments.. • considering the use of technology to make the selection process more efficient, and to improve the candidate experience. • considering contracting out some aspects of the selection process through an external provider. • limiting the number of references taken, and ensuring that they are strictly evidence-based. • the JAC should undertake such data collection, sharing and evaluation as is necessary to ensure the selection process is fair, transparent and based solely on merit.
12
I would also propose that:
• The stages of the process before and after the JAC's selection exercise should be simplified, with a smaller role for the Ministry of Justice and the Judicial Office taking responsibility for the post-selection process. • The approach to outreach should be consolidated across the JAC, Judicial Office and Courts.
A collaborative approach to reform between the JAC, the judiciary and the new courts and tribunals service (HMCTS) will enable us to improve the efficiency, speed and flexibility of the process, whilst maintaining the increased transparency and neutrality that has been delivered by the JAC and continuing to ensure appropriate independent scrutiny of the process. It will deliver a service more responsive to the needs of applicants, the judiciary and HMCTS, while also reducing costs. It should be possible to deliver a smooth transition to the new arrangements, and therefore a reduced risk to business as usual. Much can be done to move towards greater efficiency and flexibility of process in advance of legislation.
In addition to the process level improvements, there are also a series of important 'constitutional' issues which would require legislative change. Before making any firm recommendations on these issues in the future, broader consultation would be required. Given that we do not have an immediate legislative vehicle, I am not minded to pursue these proposals further at this point.
The scope of 'constitutional' questions to which I refer include:
• Should the Lord Chancellor relinquish his decision-making role in relation to appointments below Court of Appeal level? This responsibility could pass to the Lord Chief Justice as Head of the Judiciary. • Should the Lord Chancellor's role in the most senior appointments be made more meaningful by allowing him an opportunity to comment on the shortlist of candidates, before the interview stage? • Where the Lord Chancellor makes recommendations for appointment to HM Queen, should he do this directly, and not by way of the Prime Minister? • Should there be some consistent principles for the composition of selection panels for the most senior posts? For example: judges should not be involved in appointing their successors; there should not be more judicial than independent representation on the panel. • Should the Commission be reduced in size? A smaller commission could be conceivably be composed of a lay chair; two judicial nominees; one nominee of the Lord Chancellor; and two independent Commissioners selected through open competition overseen by the Commissioner for Public Appointments.
Appointment of the Chair of the Judicial Appointments Commission 13
• Should the JAC's remit, as defined by Schedule 14 of the Constitutional Reform Act, be limited to legal positions, allowing selection of non-legal tribunal members to be carried out by HMCTS.
More straightforward is the matter of moving the OJC to sit administratively within the Judicial Office. This does not require legislative change and will enable a more coherent approach to be taken to conduct and discipline matters. There will, however, need to be a sufficient degree of independent scrutiny to maintain public confidence in the system: for this reason and because of the significant benefits arising from such scrutiny, we propose to retain JACO. JACO's role will also provide reassurance as we take forward changes in the approach to appointments.
The recruitment of the new Chair of the JAC is underway and, with the Lord Chief Justice, I look forward to working with the Commission on proposals for improving the appointments process, in the first instance within the existing statutory framework.
I am also copying this letter to the Chair of the House of Commons Justice Committee, the Lord Chief Justice, the Senior President of Tribunals, the President of the UK Supreme Court, the Chairman of the Bar Council, the President of the Law Society, the President of the Institute of Legal Executives, the interim Chair and interim Chief Executive of the JAC, the head of the Office for Judicial Complaints and the Judicial Appointments and Conduct Ombudsman.
Kenneth Clarke QC MP Secretary of State for Justice and Lord Chancellor
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Appendix C
Advert for the position of Chair of the Judicial Appointments Commission
It is universally acknowledged that our judiciary is among the very best in the world, unrivalled for its integrity, its professionalism and its independence.
The Chair of the Judicial Appointments Commission (JAC), will lead an organisation that assesses and selects high quality candidates, through fair and transparent processes, to join this judiciary.
The JAC is an executive non-departmental public body, sponsored by the Ministry of Justice, with its aims and objectives agreed with the Lord Chancellor. The JAC has around 90 staff and has an annual budget of circa £6,5 million.
A review of the judicial appointments process, including the JAC, is currently underway which will result in a period of significant change for the Commission. The key role of the Chair will be to ensure that the Commission delivers a high level of service throughout the forthcoming period, to lead the Commissioners and staff through this period of uncertainty, and to ensure that the Commission plays a full and effective role in taking forward the proposals from the review.
You will be a proven strategic leader with a formidable track record of delivering results in a complex environment and the ability to build sustainable relationships with stakeholders at the highest levels in Government, the Judiciary and the wider community. You must have outstanding change management experience, budding highly effective teams to ensure you meet your objectives and an exceptional degree of personal integrity.
The Chair will be required to work for two days per week although initially, and from time to time, it may be necessary to work additional days. These will be remunerated on a per diem basis. The remuneration for the post, which is non pensionable, is £36,000 in respect of a two day week (FTE £90,000).
The appointment, which is made by Her Majesty The Queen on the recommendation of the Lord Chancellor, will be for a period of three years with the possibility of renewal.
In line with Government policy that there should be Parliamentary scrutiny of appointments to key posts, the preferred candidate for this post may be required to appear before a Parliamentary select committee prior to appointment.
Appointment of the Chair of the Judicial Appointments Commission 15
Appendix D
Person specification
Essential qualities 1. Proven experience of delivering complex and challenging organisational change programmes.
2. Proven record of selecting, and building teams at board level or equivalent, and leading these teams through a period of change whilst ensuring ongoing delivery of an efficient operation focused on key deliverables.
3. Sound strategic skills and intellectual ability that can be used to guide the Commission through existing and future challenges, including the capability to analyse complex issues and reach sound decisions to deliver proportionate and practical solutions that can withstand public scrutiny.
4. Substantial board level experience and achievement in a complex organisation involving transformational change and significant budget pressures.
5. Experience of building and sustaining positive relationships with key stakeholders and responding to and reconciling their needs.
6. Exceptional interpersonal, communication and influencing skills, and ability to operate with a high level of personal impact with Ministers, the judiciary, Parliament, senior civil servants and the public.
7. An exceptional degree of personal integrity and an appreciation of and commitment to judicial independence and recruitment on merit on the basis of fair and open competition.
8. Experience of corporate governance and excellent chairing skills.
Desirable qualities 1. An understanding of regulation in either the public or private sectors with a commitment to improving standards through effective regulation.
2. An understanding of the judiciary and its constitutional position, and an understanding of the workings of the public sector and experience of dealing with senior figures in one or both fields.
3. Experience of senior-level recruitment and selection.
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Appendix E
Curriculum vitae—Christopher Stephens
PLC Chairman and Non—Executive Director with five year involvement in Whitehall as Civil Service Commissioner and Member of the Senior Salaries Review Board.
Current roles
2009 to date SENIOR SALARIES REVIEW BOARD—Appointed Member in April 2009. Responsible for advising Government on remuneration of members of the Commons, Lords, Cabinet as well as Judges, Generals, Senior Civil Service, NHS and NDPBs.
2006 to date HOLIDAYBREAK plc—Non-Executive Director and Chairman of the Remuneration Committee FTSE 250 International business providing specialist holiday and educational activities.
2008 to date TRAIDCRAFT—Chairman of PLC and Charitable Trust£20 million turnover global business importing and selling food and craft products from developing world; charitable trust supports producers and carries out research and advocacy in Fair Trade.
2005 to date DHL UK Foundation—Chairman £24 million charitable trust encouraging Employee engagement in local communities with focus on education and development of disadvantaged young people.
2003 to date WSP PLC—Senior Independent Director, Chairman of the Remuneration Committee FTSE 250 global business providing management and consultancy services in engineering and environment; turnover c£700 million; 9,000 employees worldwide.
Previous career history
2005 to 2009 CIVIL SERVICE COMMISSION – Appointed Commissioner March 2005 Regulates appointments into the Civil Service. Chairs appointments into the top 200 most senior positions.
2006 to 2008 ING REAL ESTATE INVESTMENT MANAGEMENT NED Client Board and Pooled Funds. £8 billion assets under management.
Appointment of the Chair of the Judicial Appointments Commission 17
1996-2004 EXEL PLC (now DHL)—Group Human Resources Member of executive board responsible for group strategy and performance. A world leader in the provision of global supply chain management solutions and previously a FTSE 100 company, market cap of 2.5 billion; T/O 7 billion;110,000 employees worldwide.
1994-1996 GENERAL UTILITIES (now Vivendi)—Head of Human Resources Holding Company for the interests of Vivendi in the UK as well as the operational Management for the water investments. T/O in the UK 1.5 billion; 22,000 employees in 50 companies in the water, healthcare, energy, waste, cable and construction sectors.
1988-1993 BET PLC (now Rentokil) Building and business services; T/O 2.5 billion; 100,000 employees. Human Resources Director, BET Business Services (1991–1993) Textile Rentals, Facilities Management, Catering; T/O 390m;10,200 employees Human Resources Director, BET Building Services (1988–1991) Security Services, Property Improvements, Cleaning; T/O 775m; 67,000 employees.
Early career
1973-1975 Unisys Ltd (previously Sperry Ltd) (1984–1988) —various HR appointments finishing as HR Manager, Finance & Public Sector. Previously with Nestle (1976–1984)—Factory Personnel Manager in Middlesex following periods in Switzerland and Swaziland. This followed appointments with Unilever Ltd (1975-1976) as Employment & Training Officer, Erith Oil Works and Production Management trainee with United Biscuits
Education
MA Politics, Philosophy, Economics , Christ Church, Oxford, 1967–1970 BA Theology, John’s College,Nottingham,1971–1973
Personal
Born 28.04.48; married with three adult children; British nationality.
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Formal Minutes
Monday 31 January 2011
Members present:
Rt Hon Sir Alan Beith, in the Chair
Mr Robert Buckland Claire Perry Rt Hon Elfyn Llwyd Elizabeth Truss
The following declaration of interest relating to the inquiry was made:
Mr Robert Buckland declared an interest as a Crown Court Recorder.
Draft Report (Appointment of the Chair of the Judicial Appointments Commission), proposed by the Chair, brought up and read.
Ordered, That the draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 13 read and agreed to.
Papers were appended to the report as Appendices A-E.
Resolved, That the Report be the Second Report of the Committee to the House.
Ordered, That the Chair make the Report to the House.
Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No. 134.
[Adjourned till Tuesday 1 February at 10.15am
Appointment of the Chair of the Judicial Appointments Commission 19
Witness
Monday 31 January 2011 Page
Mr Christopher Stephens, preferred candidate for the post of Chair of the Judicial Appointments Commission Ev 1
List of Reports from the Committee during the current Parliament
Session 2010–11 First Report Revised Sentencing Guideline: Assault HC 637
Justice Committee: Evidence Ev 1
Oral evidence
Taken before the Justice Committee on Monday 31 January 2011
Members present: Sir Alan Beith (Chair)
Mr Robert Buckland Claire Perry Rt Hon Elfyn Llwyd Elizabeth Truss ______
Witness: Mr Christopher, Stephens gave evidence.
Chair: Welcome, Mr Stephens. One of my colleagues that particularly challenging and interesting work. I has a declaration of interest. am, in some ways, more interested in appointments. I Mr Buckland: I should declare an interest as a Crown think appointments are more interesting than pay— Court Recorder, which was an application dealt with unless it’s your own pay—so the role appealed to me. by the JAC. One other thing that I would say is that, in my serious working life—I have been in the business world from Q1 Chair: Mr Stephens, we were very glad to see graduation until the spring of 2005—my area of that you were recommended to us. What made you specialism was human resources, and, within that, my feel, when you applied for the job, that it was one that particular interest was talent management. I am you could do and were well suited to doing? fascinated by the endlessly difficult issue of how to Christopher Stephens: Thank you for that. I’ve had a appoint the right person to a demanding role. I have taste of the judiciary through the work that I’ve been been involved in very senior appointments and very doing for the past year with the Senior Salaries junior appointments across a 30-year time span. I Review Body. I’m sure you’re all aware of their work. think it’s endlessly interesting. The processes that you Chair: Perhaps we should all have declared an engage in, including how you design a selection interest. process, are interesting issues. I see that challenge as Christopher Stephens: Absolutely. I was fortunate being very relevant to maintaining an outstandingly enough to be appointed to the judicial sub-committee effective judiciary. of the SSRB, and, every five years, it does a So a recent exposure to the judiciary, civil service fundamental review of the terms and conditions under commission experience in appointments and a genuine which judges are employed. It’s quite a interest in the appointment process were three of the comprehensive exercise, and, in the past six or seven elements that led me to think that I might put my hat months, I have met about 40 members of the judiciary, in the ring. including those from the district and circuit bench up to the High Court, the Court of Appeal—although not Q2 Chair: You mentioned your experience. You’ve the Supreme Court—the Lord Chief Justice here, the actually got five jobs, I think. This would make a Lord President in Edinburgh and the Lord Chief sixth. How are you going to manage all of those? Justice in Belfast. We received about 40 weighty Christopher Stephens: I don’t think that the submissions from the judiciary on their views on the arithmetic can work like that. I think one must do terms and conditions under which they are employed, some taking away as well as some adding on, and, and we have initiated two big surveys. One is about of course, I am working through that. It does depend how judges and putative judges feel about the significantly on the decision that you make today, so judiciary—an attitude survey. The other is about job I haven’t actually resigned from any of those weighting—what HR people call job evaluation— appointments pending an outcome of today’s session. which is about the sizes of jobs, and that has been It depends very significantly on what the time particularly affected, on the one hand, by aspects of requirement of the JAC is. The job was advertised at devolution and also by some changes, and particularly two days a week. I think my predecessor, over the five managerial changes, of judicial responsibilities as years that she was in the post, did very substantially well. Job weightings have therefore changed. more than that, so I am currently working through a I have been involved in all of that for the past six process of understanding what the actual time months as a member of the SSRB, and it whetted my demands of the job are going to be. I am pretty certain appetite. I won’t say that I’m an expert in or that I’ve that they are going to be much more extensive at the had any historic engagement with the judiciary. It is beginning than in steady state. There is a great deal to very recent, very specific and very superficial in that learn about this, and this is a big community. I have sense. I combined that new interest in the judiciary actually asked the Ministry of Justice and had with having been a Civil Service Commissioner for agreement that I can work three days a week in 2011 four and a half years, which concerns itself with and review that in the autumn to make a plan for next making appointments into the senior civil service. year. There is, therefore, a time requirement question, Over those four and a half years, I was involved, which I do want to bottom out. again, in over 40 appointments in 20 different Just to reassure you, however, to start the process of Government Departments across Whitehall. I found subtractions, I have actually already withdrawn from Ev 2 Justice Committee: Evidence
31 January 2011 Christopher Stephens the SSRB. I don’t think you can consider yourself to will continue, but he said that there were questions be an independent person and be on both sides of an about cost and timing. evidence-taking body. So when I heard last week that The JAC tells me that the office has a serious I was a preferred candidate here, I told my colleagues programme in hand looking at every aspect of costs— on the SSRB and, much to my regret, I will not put staff numbers and organisation, the selection process, my name to the final report on the judiciary, because administrative processes and infrastructure, including I don’t think that it is appropriate to do that. I’ve done IT. It has further told me that the number of staff has all the work; I shall miss the glory at the end of it. gone down since July 2009, from 108 permanent staff to 84 today, and it has a plan to reduce that to 79 by Q3 Chair: On the time requirement, presumably if September. That is what I have been told. I don’t you want to take part in one or two of the highest know, because I couldn’t possibly know, if those appointments personally and to sample appointment reductions are large or little. I can’t tell if that will cut processes at other stages, that is, by its nature, a time- into the meat of the organisation and jeopardise its consuming process, isn’t it? effectiveness, or if it is sensible right-sizing. I will Christopher Stephens: Yesitis. make it a priority to find out, and having found out, I will be more than delighted to share the answer with Q4 Chair: Although you could perhaps compress you if it is of interest. I don’t know the answer. your administrative and management duties into less May I say something about timing? I think the than two days a week; many of these actual selection subjects are related and I assume that it is behind your processes will take a whole day or more, won’t they? question. There are two issues on timing: first is the Christopher Stephens: Of course, they will. And end to end timing, and one of your number must have more, I think, because the next appointment to the been through this. I am told that it takes 18 months Supreme Court or to the High Court will have a from when a vacancy is announced to when the planning period and then an implementation period appointed individual takes it up, which seems like a and I think it will be quite time-demanding. I am not very long time indeed. Within that period, there is a going to fight shy of that. very specific time when the JAC holds the baton, so to I am not sure that I really completed your question on speak. The JAC’s figures state that it takes 19 weeks. I giving things up. I have parked the SSRB, and I can’t am sure that figure is familiar to you, and it sounds see any way that I could go back to that. On the other like a much more defensible period. I don’t know responsibilities that I have, I chair two third sector whether either of those is right, but that is what I organisations—Traidcraft and the DHL UK understand. Foundation. They are both small but significant I think 18 months is extraordinary. That is what the NGOs, and in neither case is there an immediate and candidate and the customer are looking at—the apparent successor to me, so I am in discussions with customer is the judiciary. If the judiciary has a both of them about the implications. If today’s vacancy in a regional court and has to wait 18 months decision is positive, there are some formalities to for the great person it wants to turn up, the customer complete after today, but I understand that the will never be thrilled. We need to look at the totality formalities could be concluded by the end of February. of that. I am sure very many clever people have done By the end of February, I will definitely have resolved so before, but I intend to look at it again. If that is a my other responsibilities, and I am absolutely clear matter of interest to you, I would be more than pleased that I will devote whatever time is appropriate to this to share my findings. role. This is not something to balance in a portfolio and casually turn up to whenever I can; this is serious Q6 Mr Llwyd: May I move on slightly to diversity? heavy-lifting work, and it will get serious focus from Your predecessor stressed that the Bar Council, the me. Law Society, and ILEX were working hard to introduce more diversity into their ranks, and that Q5 Mr Llwyd: Good afternoon, Mr Stephens. The things were improving. Is there anything that the JAC Secretary of State has called for the Judicial can do to accelerate the process? Appointments Commission to focus more on Christopher Stephens: I am very cautious about efficiency. How will you do that without losing sight predicting what it may or may not be able to do. In the of the need for a more diverse judiciary? week that I have had between becoming the preferred Christopher Stephens: The Lord Chancellor’s candidate and coming here today, I have opened as requirement is about both cost and timing. I am not many cupboards as I can, but any prediction is through the door yet, so what I say is extremely highly superficial. preliminary, but I have asked the JAC what its plans For me, the first thing is to get the facts absolutely are in that respect. It is clear that there was a huge clear about men and women and about BME sigh of relief that the JAC will continue in existence. candidates at every level. I can see the broad trends at There has been a lot of challenge, noise and the magistrates level, which is not our responsibility. uncertainty in the system. The Lord Chancellor’s Half the magistrates in Britain are women and half the letter to Baroness Jay, dated 4 January, makes it very magistrates are men. At the junior judiciary level, it is clear that the JAC has his continuing support. I went a very much smaller number. Going up through the to see him explicitly on that subject, and he reassured middle ranks of the circuit bench and the High Court, me that not only does it have his support, but in the the numbers are very much smaller again. There is quango review there is no appetite elsewhere for some sense of satisfaction that the most recent parking this important body. He has assured us that it competitions for the High Court have produced some Justice Committee: Evidence Ev 3
31 January 2011 Christopher Stephens very strong women and BME candidates. So there is because I am absolutely certain that those a sense of movement. appointments will have been made on merit, and I There are some very helpful points in the Julia don’t see any reason why things can’t be similar. The Neuberger report, and I think it is incumbent upon us interesting question is why the candidates were to address them comprehensively. She has made 53 available for those jobs. I can’t back this up, but my proposals. They are mostly very familiar to me, and guess is that it is because at the level of recruitment they are things that I have covered in other parts of into the civil service, with particularly—but not my working life. I am told that the JAC directly exclusively—the fast track, for many years now 50% touches 15 of those proposals, and I am going to be men and 50% women have been coming in at the looking to ensure that, where we do touch them, we base, of the civil service. They work their way through either do it, or we explain why we are not going to do the system and eventually, if you’re patient, you get it. Again, if that is something that you want to follow proper candidates for serious jobs at the top, and then up, I would be delighted to do so. you make the appointments that you really want. That was my experience. I was part of a team—the Q7 Mr Llwyd: Here is a question that you will find commission works as a team, and I was part of a comfortable, I dare say. Not that you were bunch of other people. The commission itself is 50% uncomfortable with the previous question—I do not men and 50% women. It was a very committed and mean to be offensive. engaged group of people led, when I was first From 2005 to 2009, you were a commissioner on the appointed, by Usha Prashar, then by Janet Civil Service Commission. Could you tell the Paraskeva—you may know them. I don’t know Committee what you did to improve diversity in the whether that answers your question. civil service during that time? How successful were Mr Llwyd: Yes, it does. Thank you. you? Christopher Stephens: The process in which civil Q8 Mr Buckland: I am very interested in your service commissioners are engaged is an appointment analysis of the civil service’s position. However, do process. If you believe, as the commission did, and as you accept that there is a fundamental difference the JAC does, that the only basis on which to make between civil service career development and the an appointment is on the basis of merit following an change that a professional makes, from being either a open and fair competition, to an extent you end up solicitor, barrister, or whatever, to judgecraft? That is appointing the candidates that are served up to you. the fundamental difference between the two systems, Although not always, because on occasion, when is it not? I am interested to know your thoughts about faced with a male-only candidate list, I have been first, understanding that difference, and secondly, involved in sending it back and saying, “That isn’t trying to deal with issues such as diversity and all the good enough. I want to see some women and other other things you have talked about, in that context. candidates on this list, too.” Christopher Stephens: It is a real difference, and I This happens very occasionally, but it happened to me haven’t got my head around it properly yet. I am only once. I was chairing an appointment in a major particularly conscious that the strength of the civil Department of State and I believed that there was service is that there is a career structure: start here, some prejudice, actual prejudice, which is surprisingly move there, be tested, move on, and move up. The unusual in today’s world. There was a struggle over judiciary does not have the same leakage, from the appointment of a particular individual, and in the district, to circuit, to High Court. The very first end that person was appointed after rather a lengthy proposal in Julia Neuberger’s report is that there run and rerun of the process. I played a significant should be a greater concept of the career. There are part in that. I don’t think it is appropriate to go into isolated examples of district judges becoming circuit the detail of it, but the net result was that a very able judges, and then High Court judges—I don’t know woman was appointed to a very important job. I have whether that’s an answer. It’s not an answer that is subsequently heard that she has been very successful warmly welcomed by the judiciary themselves, so I in it. am concerned about that. There are other differences It is worth dwelling on the statistics for the senior civil as well. There is no probation period as a judge: you service, because they are quite impressive. In the 10 move in, you make decisions, and you are doing the years from 1998 to 2008—I was involved for only job from day one. There isn’t the same level of part of that period, and I only made a modest appraisal, mentoring and support as there is within the contribution—the number of senior civil service jobs civil service. Then, of course, there is this that went to women moved from 18% to 32%. That extraordinary fact in the judiciary that once you are puts the civil service pretty high in any of the appointed, you are pretty hard to dislodge. That’s not institutional records of women in top jobs. There was true in the civil service either. an especially strong increase in the level of permanent So, there are some real differences. I haven’t got a secretaries: when I joined the commission there were snappy answer as to how those should be resolved, three female permanent secretaries out of a total of but I have a rich seam of belief that there are things 40; and in 2011, which post-dates my departure—I am you can do. I think that Neuberger references many not making a claim about this—there are 10 female of them. permanent secretaries out of a total of 41. There is a shift in the senior civil service, and I think Q9 Mr Buckland: I suggest that perhaps the best it is very exciting. It is a challenge for some of the way for you to approach it would be to accept the other great institutions, including the judiciary, differences, rejoice in them, and adapt your way to Ev 4 Justice Committee: Evidence
31 January 2011 Christopher Stephens accommodate them. Is there not a worry that if we go Claire Perry: Good. Thank you. down the career-based path and the undislodgeability path, in the end—and with respect to civil servants— Q12 Elizabeth Truss: I will ask a few questions judges just become civil servants? There is a about the internal review, which really follow on from difference, is there not? Claire Perry’s questions about efficiency with a new Christopher Stephens: Yes, there is. There is another organisation. One of the recommendations in the huge difference, which is that typically, judging is a review was to reduce the corporate overhead. As an second career. In itself, that is significant too. You observer of corporate life before I came here, what have people coming in—you could even join the often seems to happen is that there can be capture by Supreme Court having not been a judge previously. middle management in an organisation to stop change There are some significant differences. I am not sure happening or to not identify the right costs. Did that whether it all plays against diversity necessarily, but I happen in your experience in the commercial sector, would like to explore it. If you are looking for a and what will you be doing to avoid that happening? formulaic response, I am afraid I will elude and Christopher Stephens: You are asking two questions. disappoint you. Has it happened in my previous experience? Of course; every organisation has a tendency to sclerosis, Q10 Claire Perry: I wanted to mine your rich seam doesn’t it? It’s true that over the long term of experience in the private sector and to touch a little organisations accrete; every additional appointment bit on some of the efficiency questions. You answered seems to be absolutely essential and the future just my colleague’s question about the timing problem that won’t be achieved without adding a person here and the overall system faces. I wanted to press you a little a person there. So, of course that happens. In the hard bit on the cost of the system. We heard from your school that I have come from, we have had periodic predecessor that the cost of an appointment process reviews of businesses, and particularly in low-margin by the JAC, roughly accounted for, was £2,889. The industries you are pretty vigorous about them. I have Baroness felt that compared well with both the spent many years in the cleaning industry, in the previous organisation and also the public and private security industry, in the transport industry and in the sectors. Do you have a feeling yet as to whether that logistics industries. Those are very basic industries is a good number, or a number where costs could be and adding corporate expense is not a popular thing taken out? to do, so I am very, very familiar with being tough Christopher Stephens: I am going to duck that. If you on this. are asking me about an absolute number—is £2,800 a I don’t know whether that is right for the JAC, which bigger or smaller number—I really don’t know. I I think is extraordinarily young. It was established on come from a commercial environment where profits 3 April 2006, so it is nearly five years old. It is very, were made in pence per pound. In one the world’s very young, and during that time it has had a lot of most successful companies in its field, we made 3p in public scrutiny and a lot of review. I don’t know the pound—3 cents in the dollar. We counted every whether the staffing levels are generous or not. I can single item of expenditure several times over before only assure you, as I have assured your colleague, that we incurred additional expenditure. I bring only an I will have a seriously good look at it. I’m not the acute sense of commercial toughness, I suppose, or chief executive of this organisation; I have been asked robustness. But actually what the answer is I don’t to be the chairman of a board of commissioners with know. I have glanced—no more than glanced—at accountability for ensuring the pace and efficiency of some of the things that the JAC does in its recruitment it. I am going to look at it as hard as I possibly can, processes and my first impressions are extremely within two constraints. One constraint is that I am positive. What it does is carefully thought through and asked not to be a full-time chief executive, which is properly validated. Whether it’s cost-effective, I in a sense the less important point. Much more honestly don’t yet know. important is that we are not going to jeopardise the quality of appointments to the judiciary. Q11 Claire Perry: Would you make that part of your The one consistent tale that I have heard from the mission to assess? Clearly, you would be asked to take Lord Chief Justice, from the many judges I have met out, I think, 17% of the budget—sorry, the 17% has in recent months and from various people I have been already taken out, but there will indeed be spoken to in the last week is that the JAC has ongoing cost pressures. One of the things that I continued to make high-quality appointments to the certainly felt when we were quizzing your predecessor judiciary. We are not going to reduce the quality of was that the business processes are not necessarily judicial appointments for a ha’porth of tar. I do not designed to be effective. It’s a monopoly organisation, think that that is a smart thing to do. Will I bear down so why does it advertise, for example? There are some on costs? Yes. Will I jeopardise the quality of real questions. Do you think you would have the skills appointments? I would hope not. I can only make a and the appetite to ask those tough questions? broad and generalised assertion of good intent. I can’t Christopher Stephens: Yes, I think you raised exactly tell you whether I think it is generous or not. that point at the last Committee that Usha Prashar attended. Q13 Elizabeth Truss: Have you had a look at the Claire Perry: I did. grading structure and the number of layers in the Christopher Stephens: I think you are right to raise organisation? One of the observations I have about the it, and to go on raising it, and yes, I will pay attention commercial sector is that a lot of layers have been to it. So yes is the answer. taken out. Modern technology has enabled that to Justice Committee: Evidence Ev 5
31 January 2011 Christopher Stephens happen. That perhaps has happened less in some areas the real legwork. We can’t get to every city and of the public sector, partly because of quite a rigid judicial centre in the country and think that we are grading structure. You must have seen that at the Civil fulfilling our charges. We have to get them to get to Service Commission and have comments on that. I am every corner of the country and fulfil this, it seems to interested in your views for the civil service, but also me. So it’s on the list. on the judicial appointments side. Can you see the number of layers, and how do you go about reducing Q17 Chair: One of the issues that this Committee them, when you do have quite a rigid grading has taken an interest in previously is the effective structure? barrier to advocates working in the Crown Prosecution Christopher Stephens: I haven’t looked at it in detail. Service, many of whom are women and often from I’ve had assertions from Nigel Reeder, who is leading ethnic minorities, moving into judicial appointments. the performance review process, that the number of We have certainly discussed how it might be possible senior civil servants is now X and it is going to be Y. to deal with that without in any way compromising It is seemingly rather a large number at the moment trials or independence. and it is going to be a smaller number imminently. I Christopher Stephens: I gather there is a technical haven’t got those numbers at my fingertips, and I question, and I’m afraid that I haven’t got my head haven’t explicitly looked at it. I share your concern. around it. This important body needs slight but expert management; it doesn’t need a massive bureaucracy. Q18 Chair: Technical questions are there to be resolved. Q14 Elizabeth Truss: Sometimes, it is not just about Christopher Stephens: If there is a technical solution costs in layering. It is about communication and how to it then I shall have a look at it. I know there is a having too many layers can reduce the efficacy of an CPS question, which I’m afraid I’m not really organisation. familiar with. Christopher Stephens: I share your view. I think we see the world from the same place. I don’t know the situation at the JAC; I will look at it. Q19 Mr Buckland: We had an interesting discussion with your predecessor—your predecessor if you are Q15 Elizabeth Truss: You would make that one of appointed—after last time’s evidence hearing about your first questions. the potential of marketing the models used by the JAC to other countries or to other institutions with a view Christopher Stephens: I have asked briefly about it. I will make it a priority. Thank you. to making some sort of income. Bearing in mind your commercial and private sector experience, do you think that could be a runner? Q16 Chair: Clearly, the JAC has a dual Christopher Stephens: One brick at a time is sensible. responsibility: first, to make appointments on merit We have a few challenges. When I considered doing and merit alone; secondly, to deal in some measure— this job, the thing that made me most anxious was that there is some wording in the brief that says this—with if you read the JAC’s annual report on the one hand the problem that you identified, which is that meeting needs such as diversity depends entirely on the you could see progress under every significant candidates served up. It is therefore assuming that the heading, but when you listened to the judges you JAC will play a role in encouraging the movement of could hear reservations and further reservations when people from various minorities or under-represented you listened to the MOJ. I think we have some work groups—women are the obvious example—into the to do to get on to a really steady flight path for the positions from which they can achieve judicial work of the JAC and establish it as a centre as of appointments. excellence in appointments. I would like to see that Christopher Stephens: Yes, and that process has happen. obviously been in hand for a bit. A very interesting I gather we had a visit today from some question when we get to the end of the session will representatives of the judicial appointments service in be how many top priorities I am going to end up with. South Korea. I did not meet them myself, but they One of my high priorities will be to meet all the were there today. I gather that some other professional professional bodies and to pursue vigorously the sort body has asked us whether we would share our of campaigning aspect of the JAC’s work, which is to expertise on large numbers of recruitments. But while increase open access to the judiciary from all sorts of I accept from your colleague that there are a number candidates, not just women and BME candidates. We of top priorities, that has to be viewed as something are also massively under-represented by solicitors as down the track a little bit, although it would be very against barristers. attractive to me personally. I have provisional dates in the diary to meet those professional bodies. It may be a glaringly obvious Q20 Chair: You have a lot of experience of point, but it occurs to me that we should be catalysing remuneration committees. Now many a shareholder them to be the evangelists on our behalf, rather than will regard remuneration committees as a bit of a soft thinking that we are the evangelists in totality. It is touch on the basis of the experience of recent years. actually the barristers who will persuade the barristers Do you think it equips you to take a pretty firm view and the solicitors who will persuade the solicitors. Of and assessment of whether pay levels and senior course, we have a role to play, but I would prefer that salary levels in the organisation might have got too role to be catalytic and get leverage from them doing high? Ev 6 Justice Committee: Evidence
31 January 2011 Christopher Stephens
Christopher Stephens: I am not sure whether your got to do with the JAC. I don’t happen to think that question is about my robustness to challenge difficult multiples of judicial pay are out of hand at all. One of issues or about pay. I would be delighted to answer. the challenges for the judiciary might be that external evidence of pay at the very top of the legal profession Q21 Chair: It is about whether you have a is that that pay has moved ahead at an incredible pace disposition to challenge assumptions that pay levels in recent years, and that is the pool from which the have to be higher than many people outside would most senior judges are attracted, whereas the external think were necessary. evidence of the pay of people who are attracted at the Christopher Stephens: I have a disposition to level of district judges is that that pay has not moved challenge any issue that I think is significant for the ahead at the same pace, partly because of the organisation. I have consistently done that in my reduction in the legal aid budget. So I think that there commercial working life. I’m pretty clear that I was are some complex issues around judicial pay. appointed to the final role that I had because I challenged the management team on the people Q22 Chair: My question didn’t relate to the pay of agenda that the company was pursuing. I am very the judiciary, but to the pay of the people for whom comfortable that I have an independent spirit. I am not you would be responsible in the JAC. owned by anybody. I don’t have a specific agenda. I Christopher Stephens: I’m volunteering unnecessary am very happy to challenge very senior people on information. It’s a topic of real interest, anyway. very big issues if it is appropriate to do so and with Chair: Thank you very much, Mr Stephens, for due courtesy. So I don’t have any problem about the coming this afternoon. I am sure that you weren’t role of independence and the role of challenge. reluctant to do so, interested as you are in this As to pay issues, they are a matter of particular appointment. We will consider our report and make it personal interest to me. I have absolutely no doubt very quickly to the Lord Chancellor, from whom I that, in the commercial sectors, the multiples of pay have no doubt you’ll be hearing shortly. Thank you of people at the top from people at the bottom have very much. got entirely out of hand. I’m not quite sure what that’s
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