A High Court judge who assessed a solicitor’s unsuccessful application to join the bench has told an employment tribunal he did not favour silks over non-silks.

Martin Chamberlain and the Judicial Appointments Commission are named as respondents in a claim brought by solicitor Ashok Ghosh for direct and indirect race discrimination arising from a deputy High Court judge recruitment exercise conducted last year. Ghosh, who was cross-examined by Benjamin Cooper KC for the respondents this week, began cross-examining Chamberlain yesterday.

Ghosh asked if it was ‘purely coincidence’ that 14 of the 20 candidates shortlisted were KCs.

Chamberlain replied: ‘If you look at what I have said about QCs, I did not favour QCs over non QCs. I have cases all the time where there is a QC on one side and someone who is not a QC on the other side, and I come out of the case and think the one who was not a QC did better.’

(Candidates who were silks were 'QC' at the time of the recruitment exercise.)

On why more silks may have been shortlisted than non-silks, Chamberlain said there were similarities between the competency framework for silks, and the skills and abilities the JAC ask for.

Ghosh asked Chamberlain if it was ‘merely a coincidence’ that 14 of the 20 candidates shortlisted had at least one judge as an independent assessor ‘or is that a reflection of your bias in favour of people just like yourself?’.

Chamberlain replied: ‘I’m not seeking to prefer people just like myself.’ 

Judges would be well qualified to talk about someone’s suitability for the role, Chamberlain said, but so too would a senior solicitor. 

Earlier this week, Cooper told the tribunal that the ‘name blind’ sift was one measure used by the JAC to reduce the risk of bias. The tribunal heard again yesterday that Chamberlain recognised the identities of nine candidates. 

‘What’s the point of having a “name blind” sift if the person doing the sift knows many of the candidates?’ Ghosh asked.

Chamberlain replied: ‘You gave the example of someone I recognised because they instructed someone else in my chambers. I could not honestly even say if I have met that person. I might have done fleetingly. If I came across that person in the street I’m not sure I would recognise them.’

Ghosh asked Chamberlain if the risk of subconscious or unconscious bias increased if the assessor knew the candidate.

Chamberlain said that as a judge and a sifter in the JAC competition, he tried to avoid being affected by subconscious bias.

‘The second part of your question was how this process would appear to black and Asian candidates looking at what had happened here, which is a fair question. Black and Asian candidates looking at what happened here would note that of the nine successful applicants whose identities I recognised, three of them were candidates of Asian ethnic origin and one candidate of mixed ethnic origin. I do not think they would come away with the impression the only people I recognised were white people.’

Ghosh asked how Chamberlain, a barrister, would have felt when he applied to become deputy High Court judge, and then a High Court judge, if the entire selection panel and legal members were black solicitors with no knowledge of his type of work or advocacy. Ghosh told the tribunal the converse happened in his case, that the sift panel was made up of eight white people and he is not white.

Chamberlain said: ‘Had I been told when I applied to become deputy High Court judge then, that the people assessing my form were all black, it would not have bothered me at all. I would not have given it a second thought.’

However, if the selection panel consisted entirely of solicitors who had no experience of anything other than non-contentious work, Chamberlain said he would have questioned whether they could fully understand the demands of a dispute resolution role.

The hearing continues.