Judges: Performance Appraisal (Hansard, 20 June 1995)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, the Royal Commission on Criminal Justice recommended the creation of a formal system of performance appraisal for the judiciary. The recommendation is being considered in consultation with the senior judiciary and the Government will respond to it in due course.

§ Lord Ashley of Stoke
My Lords, is it not a fact that the Royal Commission reported two years ago next month, which means that there has been an inordinate delay over the simple principle that there should be appraisal of Her Majesty's judges? Would it not be possible for the noble and learned Lord the Lord Chief Justice and his colleagues to implement the proposal as soon as possible?

§ The Lord Chancellor
My Lords, it is true that the recommendation was made some time ago. It was one of a large number of recommendations, and these matters take some time to consider. It is not as easy as it seems to have a formal system of performance appraisal for judges. One must take account of the fact that judges, more than members of any other occupation I know, perform their duties in public. There is therefore constant public appraisal of what judges do. There are also arrangements for appeals in which the decision of a subordinate court is subjected to analysis and appraisal by the Appeal Court. I know of no occupation in respect of which there are more elaborate provisions for correcting mistakes than there are in the judicial hierarchy. Therefore, it may well be that we have in place already the best possible form of formal appraisal of the judiciary.

§ Lord Ewing of Kirkford
My Lords, who would undertake the appraising? Would it be those whom the judges found guilty or those whom the judges found innocent?

§ The Lord Chancellor
My Lords, the noble Lord raises an important question. Considering the nature of litigation and that on the whole it is difficult to satisfy both parties, the number of complaints received against the judiciary is remarkably small. Perhaps that is made all the more manifest by the fact that when anything possible can be said against a judge by way of complaint it is often magnified out of all proportion.

§ Lord Irvine of Lairg
My Lords, does the noble and learned Lord not recognise that the notion of formal performance appraisal being appropriate for all ordinary mortals in business, industry or the Civil Service but not for judges does not convince the public? Will he confirm as a matter of fact that the principle of monitoring has already been accepted in relation to part-time members of the judiciary, recorders, deputy district judges and those who chair Benches of magistrates? Does the noble and learned Lord agree with the noble and learned Lord, Lord Woolf, whose report he recently welcomed, when he says that he, sees benefits in a more general extension of monitoring"?

§ The Lord Chancellor
My Lords, the noble and learned Lord's report contains material on certain aspects of judicial work which he believes might benefit from consideration for appraisal. As regards part-time judiciary who are under consideration for appointment to full-time office, there is a system in place for ascertaining how well they do. Competition for such appointments is strong and therefore it is important to know how well people do in part-time appointments. The noble Lord is correct on the facts relating to that part of his question.
As regards convincing the public, I believe that they have considerable confidence in the judiciary. If there is one manifestation of that which is more evident than any other it is that if there is a matter of real concern, the person who is asked, usually by all parties in the other place, to carry out an inquiry is a member of the judiciary.

§ Lord Renton
My Lords, is my noble and learned friend aware that for centuries an automatic form of judicial appraisal has been in operation; namely, considering whether a judge has been upheld or reversed on appeal? That is truly realistic. Any other system would have to be extremely good in order to be better.

§ The Lord Chancellor
My Lords, the appeal system is an important aspect of any form of appraisal. I would not necessarily attribute a great deal of importance to the number of times a judge had been upheld or reversed. Sometimes there is more than one reason for that, and one would need to examine the full circumstances of the case. The full circumstances are available. Anyone who is interested can usually read the reasons given by the judge and the reasons given by the Appellate Court for either upholding or reversing the judge. Crude statistics of decisions upheld or reversed would not of themselves be reliable. I am sure that my noble friend does not refer merely to a crude analysis of the statistics. But the appeal system enables judgments to be made which are well-informed, formal and effective.

§ Lord Harris of Greenwich
My Lords, is the noble and learned Lord aware that we agree with him that when problems arise demands are made in the other place for a member of the judiciary to come forward and conduct an inquiry? That being so, is he aware that we particularly regret the campaign which has been waged against Sir Richard Scott by a number of Members of another place to undermine confidence in the report which he is soon to produce?

§ The Lord Chancellor
My Lords, I am not aware of a campaign of the kind to which the noble Lord refers. The noble Lord will not be surprised to hear that I have the fullest confidence in Sir Richard Scott. He is conducting an inquiry in circumstances and according to a procedure which he has explained publicly. I very much regret that what he intended to be confidential communications with a view to giving people fair notice of views he has formed in order that they may be considered fully before he reaches a final conclusion have emerged in the public media, quite contrary to his wishes.

§ Lord Ashley of Stoke
My Lords, does the noble and learned Lord the Lord Chancellor not agree that following strict logic the fact that judges sit in public and that there is an appeal system is utterly irrelevant to the fact that there is no effective formal performance appraisal? Those points are not relevant to that particular subject. Does the noble and learned Lord agree that every time a request for public appraisal is made, professions always complain that it will be damaging; yet it is working for such professions as the police, teachers, solicitors and so on? Therefore, why should it not work for judges?

§ The Lord Chancellor
My Lords, on this aspect my fundamental disagreement with the noble Lord, Lord Ashley of Stoke, for whose views I have the greatest respect, is that I consider that what I have said is relevant. It is a very general, open form of consideration of the adequacy or otherwise of a judge's work. Therefore, as I said, the judiciary stands in a very different position from those mentioned by the noble Lord in relation to public examination of its work. That is an extremely important consideration in relation to the recommendation of the Royal Commission.