Crime and Courts Bill [HL]
Baroness Jay of Paddington Excerpts(13 years, 4 months ago)
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Lord Pannick
My Lords, I support the amendments in the name of the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee, but I want to speak to Amendment 86D, which arises out of the report of your Lordships’ Constitution Committee. The amendment is in my name and those of the noble Baroness, Lady Jay of Paddington, chairman of the Constitution Committee, the noble Baroness, Lady Prashar, former chairman of the Judicial Appointments Commission, and the noble Lord, Lord Powell of Bayswater, who is also a member of the Constitution Committee. I am very pleased to see the noble Baronesses, Lady Jay and Lady Prashar, in their places. The noble Lord, Lord Powell, apologises to the House that he is unable to be present as he has to be abroad today.
As your Lordships have heard, Section 64 of the Constitutional Reform Act imposes a duty on the Judicial Appointments Commission to have regard to the need to encourage diversity in the range of persons available for selection for appointments. The purpose of Amendment 86D is to ensure that this statutory duty to promote diversity is also placed on others who have leadership roles in relation to the judiciary: that is, the Lord Chancellor and the Lord Chief Justice. As the noble Lord, Lord Marks, has said, the promotion of diversity is one of the greatest challenges facing our legal system. Figures produced by Professor Alan Paterson, a very distinguished expert in the field of judicial studies, show that of the OECD countries, the representation of women in our Supreme Court—one member out of 12—puts us shamefully in the last place in that measure of diversity.
The aim of achieving a more diverse judiciary does not mean reducing the standards for appointment. On the contrary, merit remains the criterion. The task, as Section 64 recognises, is to identify ways of bringing to the fore those highly skilled women and members of ethnic minorities who are in the legal profession—there are very many of them—so that they can be considered for appointment on merit. The amendment would impose a statutory duty on the Lord Chief Justice and the Lord Chancellor in this regard.
The Government have previously argued that a specific statutory duty is not needed because everybody understands the need to move forward on this. There are three answers to that approach. First, Section 64 does contain a specific statutory duty on the Judicial Appointments Commission. It is right and proper to make clear that responsibility does not lie solely with the JAC but also with others in a leadership role. The noble Lord, Lord Deben, who I am pleased to see in his place today, made a very powerful speech on that point in Committee.
Secondly, a statutory provision such as this importantly emphasises to the public the recognition by all those in a leadership role that this is a subject to which priority must be given. Thirdly, and finally, the amendment, and the enactment of a statutory duty along these lines, is no criticism whatever of the efforts made by the current Lord Chief Justice—I know personally that he takes the need to promote diversity very seriously indeed—or of the new Lord Chancellor, or, indeed, his predecessors. They all take these matters very seriously, as I know does the Minister, who is personally committed to promoting diversity in the judiciary. However, they will not always be in post and it is important to take this opportunity to address the matter in legislation.
Amendments 86A to 86C, to which the noble Lord, Lord Marks, has spoken, also have my support, although he acknowledged that Amendment 86C may be less preferable to Amendment 86D. Amendment 86DA in the name of the noble Lord, Lord Beecham, which is also in this group, is to similar effect. Again, it has my support, although, if I may say so, it is optimistic indeed for proposed new subsection (4) of the amendment of the noble Lord, Lord Beecham, to suggest that the problem of a lack of diversity may be cured in five years. I remind the noble Lord that in a recent lecture, Lord Sumption of the Supreme Court suggested that 50 years was more realistic on current progress.
Baroness Jay of Paddington
My Lords, I rise briefly, but powerfully, I hope, to support the noble Lord, Lord Pannick, in his amendment and to say that I agree with much of what the noble Lord, Lord Marks, said. As has been said, this point was very much the burden of the Constitution Committee’s report on judicial appointments, which I had the privilege of chairing. Above all, our message was that there needed to be decisive and persistent leadership on this question among those making appointments at every level.
I agree with the noble Lord, Lord Pannick, and regretfully disagree with my noble friend Lord Beecham about the prospects for a timescale of five years to make this happen because one of the things which was absolutely clear in the evidence that we took from a number of people who had held office over a long period was that many of them had a personal commitment to improving diversity, as the noble Lord, Lord Pannick, has reinforced, but that none had actually succeeded in doing that. It seemed unlikely that that was to do with their capabilities but was much more a case of there being resistance within the system. Therefore, the obligation on the Judicial Appointments Commission to have a statutory duty to enforce and support diversity seemed to be one that should properly be extended to the wider group of people in leadership positions, as the noble Lords, Lord Pannick and Lord Marks, said.
The response from the Government to our report was surprising in the sense that it referred almost exclusively to the fact that the one thing the Government did not want to do was to overburden the statute book with this provision. Indeed, the Constitution Committee has returned to this subject in the past few weeks. We heard evidence on 21 November from the new Lord Chancellor, Mr Grayling, who again said that he was absolutely committed to making this objective happen. However, when asked why it did not happen, he said that it would be unfortunate to try to impose more legislation on the statute book when the objective could be achieved through the leadership which he and his predecessors said they were capable of. However, I point out to the House and the Minister that the amendment of the noble Lord, Lord Pannick, which I have signed, requires only 13 words to be added to the statute book. Therefore, it seems to me that the overburdening of legislation is not necessarily a powerful argument for rejecting it. The simple fact is that this is a very straightforward recommendation which could be absorbed into the Bill very easily.
The noble Lord, Lord Powell of Bayswater, who is, indeed, another signatory to this amendment and is not here this afternoon as he is in the United States, when speaking with the new Lord Chancellor, Mr Grayling, in our committee, referred again to the recommendation we had made about putting a statutory duty on him and the Lord Chief Justice. The noble Lord, Lord Powell, said—I think this was echoed by other members of the committee and is the point we all abide by—that it was not that we did not recognise that there had been progress but that,
“it has been at the pace of a pregnant snail”.
We now need to overtake the pregnant snail to which the noble Lord, Lord Powell, referred, and put this on the statute book in these very simple 13 words.
Baroness Prashar
My Lords, I rise to speak as the former chairman of the Judicial Appointments Commission. I have put my name to this amendment because I feel very strongly about this issue. I absolutely agree with what the noble Lord, Lord Pannick, the noble Baroness, Lady Jay, and the noble Lord, Lord Marks, have said. I think everyone now recognises that promoting diversity is a common endeavour—a joint effort to be made by the judiciary, the Ministry of Justice, the Lord Chancellor and the JAC. It is therefore important that all three have statutory responsibility, because that will focus their minds. As someone who was responsible for giving effect to the statutory responsibility of the JAC, I was always mindful of the fact that the focus really was on the JAC. Others sat around the table and said, “What is the JAC going to do?”
At Second Reading, the Minister said that this would be gesture politics. This is not gesture politics; it is about getting people to take responsibility, because there are a range of things that are outwith the responsibility of the JAC, where efforts need to be made. If your Lordships heard the debate earlier on the amendment of the noble and learned Lord, Lord Lloyd, concerning part-time working, you can see how formidable the opposition can be. We need to change that culture, impose that duty on others and provide an opportunity so that real progress can be made.
Crime and Courts Bill [HL]
Baroness Jay of Paddington Excerpts(13 years, 9 months ago)
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Lord Woolf
My Lords, I agree entirely with what has been said so far about the inappropriateness of altering the Lord Chancellor’s position from that contained in the 2005 Act. I do not propose to repeat the reasons for that, since they have already been given. I will try to identify, however, one or two further reasons why the same conclusion should be reached.
The relationship between Parliament and the judiciary is central to the operation of our constitution and the Lord Chancellor’s ability in the future. I endorse what has been said about the present Lord Chancellor and I recognise his good motives, but the constitution as devised by the noble and learned Lord, Lord Falconer, and myself, first in the concordat and then in the Constitutional Reform Act 2005, referred specifically to the role of the Lord Chancellor being limited to giving either an affirmative response or applying a veto. That was done because it needed to be clear beyond peradventure that he had the responsibility of saying no to a recommendation of the Judicial Appointments Commission, if anyone was to do so. Because of that, if he did not exercise that power, the situation would be one where it could not be said afterwards that the Government of the day had not given consent to an appointment which was in fact made.
Secondly, there is a provision in the Constitutional Reform Act 2005 which provides that if the Lord Chancellor decides to exercise his veto, he has to do so openly and give reasons for it. If he is a member of the commission responsible for the appointment, the part that the Lord Chancellor plays will not be known. The experience in other jurisdictions is clear. One of the problems of having an independent appointments commission is that deals will be done. For example, if the Lord Chief Justice and the president are both up for appointment at the same time, it is only human nature for the commission to come to a decision. If the members of the commission do not all agree, they will give the Lord Chancellor either the Lord Chief Justice or the president, as long as they have the other appointment. That would be highly undesirable.
For example, it can be seen clearly in other jurisdictions that the Executive can control what the judiciary does if it can only achieve a senior judge who is sympathetic to its cause. I will cite but one example. One could assign a judge who is regarded as giving unhelpful decisions to parts of the jurisdiction that are unattractive in which to operate. So far, that has not happened here. We do not want to make it easier for it to happen than is the position at the present time.
My final point is this. The amendment must be looked at in conjunction with the amendment we considered on Monday whereby the Lord Chancellor would give up any responsibility for the appointment of the great majority of judges. We are going to have a situation where he does not exercise any powers in regard to a large number of judges and, in addition, he does not openly take an active part in the appointment of very senior judges. I suggest that such a position would be a retrograde one, and therefore the amendment is one that the Committee should look upon favourably.
Baroness Jay of Paddington
My Lords, I am pleased to follow the noble and learned Lord in the constitutional points that he and others have made in supporting this amendment. The noble and learned Lord, Lord Woolf, summed it up very well in his Second Reading speech when he said that if this provision in the Government’s Bill went through, the Lord Chancellor would be in a position of giving advice to himself, which in itself is anomalous, if nothing more.
As other noble Lords have made the constitutional points most effectively, I wonder whether I could raise just an administrative question with the Minister. It seems to me surprising that the Government should propose such a potentially flexibly arrangement for the Lord Chancellor in relation to these very senior appointments as it seems to be the Lord Chancellor’s personal choice whether he takes part in a selection panel or not. As far as I can make out from reading the Bill, this may mean that he decides to sit on appointment body “A” but not on appointment body “B”. A question arises about the consistency of the appointing panel’s approach. There is also the rather bizarre question about what happens if the Lord Chancellor decides that he will not be a member of that panel and the panel has been constituted, as we understand it, in the legislation. Who replaces him, how is that replacement chosen, and to whom is he responsible? For all the reasons that noble Lords have given, I suggest that this is both constitutionally and administratively inappropriate. That is why I would be very happy to support the amendment of the noble Lord, Lord Pannick, should he ask the Committee to give an opinion on it today.
I make one further point to reinforce the point which the noble Lord, Lord Goodhart, was making about the change in the Lord Chancellor’s position. This was confirmed in the hearings that the Constitution Committee held on this matter by the present office-holder himself, the right honourable Kenneth Clarke, when he said:
“I think that we will have a Lord Chancellor who is not a lawyer. The lawyers that we have, including me, will not be as senior and distinguished as they used to be ... A better understanding of my role would be to describe me as Secretary of State for Justice”.
That seems to underline the points about potential politicisation, which other noble Lords have made.
Baroness Butler-Sloss
My Lords, I agree entirely with what has already been said but I wonder whether I might add another point. I refer to a situation where a Lord Chancellor is not a lawyer or a very senior person but perhaps wants to make his mark in the political world and is much more overtly political than the present Lord Chancellor, who is very distinguished in his own right in the law. I ask the Minister to visualise the meeting of the commission. The Lord Chancellor is a member of the commission. He has a role as the Secretary of State for Justice, but he is only a single member among a number of people. Either he is going to be very powerful and he is going to override what everybody else wants, or he is not going to be very powerful, and he is going to be very dissatisfied with not being able to carry the commission with him. Either way would be extraordinarily unsatisfactory for someone who is head of the administration of justice in running the courts and has some responsibility for the judiciary. It is yet another point that leads me to support the amendment of the noble Lord, Lord Pannick.
Lord McNally
If it is such a gossip-ridden world, the better it would be to have the Lord Chancellor fully and transparently in the process. I am afraid that all that one can say is that strong opinions are held.
Baroness Jay of Paddington
I am a non-lawyer who, I am glad to say, was not part of the constitutional settlement in 2005. If the noble Lord described himself disingenuously as a simple lad, I am even worse as a simple laddess. I am trying to get a vision of this construct that the Minister has explained of either my noble and learned friend Lord Falconer or the present holder of the office of Lord Chancellor, the right honourable Kenneth Clarke, being subdued members of a totally egalitarian panel on which the merits of the candidates are discussed in a constructive and totally relaxed way, and the subdued and reticent Lord Chancellor finds himself in a minority. Should the panel recommend that Judge X becomes a member of the Supreme Court, the Lord Chancellor, having been this subdued and reticent member of the panel, could feel that it is wrong. What, then, are the prospects for effective working between them?
Lord McNally
Quite often in politics, in the law and in other parts of life, one finds oneself working with someone whom you do not particularly like. The difference this time is that there would be no political veto to that committee’s decision. It is worth putting on record that this would be a Lord Chancellor withdrawing his veto from those appointments. Yet, with his silken sophistry, the noble and learned Lord, Lord Falconer, implies that this is an extension of political power. It is just the opposite of the extension of political interference.
Baroness Prashar
I thank the Minister for giving way. I now want to turn to another point on which I and the noble Baroness, Lady Jay, asked a question. The provision states that the Lord Chancellor “may” sit on the panel. If that is the case, on what basis will he decide to sit on the panel? If he decides to do so, will that not send a different signal? Will it not suggest that there is a reason why he wants to sit on the panel or a reason why he decides not to do so? I think that that will create an unhelpful perception.
Baroness Jay of Paddington
The noble Baroness, Lady Prashar, mentioned that I also raised a point on this matter. If the Lord Chancellor decides not to sit on one of these panels, does he not retain the right of veto, and that therefore the disappearance of the veto, on which the Minister has been relying so greatly, is not in fact universal?
Lord McNally
No. I am very grateful to the noble Baroness because I should have clarified this point. The Bill says that the Lord Chancellor “may” be a member, but we intend to bring forward regulations setting out that the Lord Chancellor “will” be a member of the panel. This will not be able to be changed other than by a new regulation, which will be subject to affirmative procedures and agreement and to the agreement of the Lord Chief Justice and the president of the Supreme Court.
Lord Gilbert
I hope that the Minister will explain why there should be any compulsory retirement age for Justices of the Supreme Court. I see no justification for it.
Baroness Jay of Paddington
My Lords, I do not accept my noble friend’s comments. As the noble Lords, Lord Hart of Chilton and Lord Pannick, said, we went into this in some detail in the Constitution Committee. For all the reasons advanced very eloquently by the noble Lord, Lord Pannick, I support the amendment, particularly because of the potential for increasing diversity both in the Supreme Court and, indeed, further down. Both noble Lords have expressed the potential for opening up more opportunities for people who have come through what is described as the non-conventional career path to reach the top of the profession. I—and many members of the Committee —have a personal interest in the concept that 70 is the new 50, so 75 should be the new 55.
Baroness Butler-Sloss
My Lords, if 70 had been the retirement age for Supreme Court judges, particularly the judges in the House of Lords, we would have lost Lord Bingham before he even got to the House of Lords. We would have lost the noble and learned Lord, Lord Phillips, the present president of the Supreme Court, who goes at 75. He is almost the last of those who are entitled to stay until 75. The first solicitor to get to the Supreme Court, who was of enormous value to it, left after 18 months because he was caught by being aged 70. He was as valuable as the noble and learned Lord, Lord Phillips, but he went at 70.
The Supreme Court is losing people who cannot even get there, or who get there for 18 months if, as has already been said, we allow time for people to get through the High Court and the Court of Appeal to the Supreme Court. I think only two judges have gone straight through and one judge came straight from the Bar. Normal process means that we are losing people who are extremely valuable. This has been brought up in Question Time on a number of occasions and the Government really should be looking at it. The previous Government were asked to look at it but, if I may say so, they pushed it to one side. It would be very good if this Government would take it up.
Baroness Butler-Sloss
As a former judge I very strongly support the amendment by the noble Lord, Lord Pannick. I would particularly like to endorse what the noble Lord, Lord Deben, said, with which I entirely agree. It is a very good thing when we get some non-lawyers reminding us, but he can be assured that former senior judges support him on this.
Baroness Jay of Paddington
My Lords, like the noble and learned Lord, Lord Woolf, I rise really for the sake of the record and because my name is on this amendment. As the noble Lord, Lord Pannick, said in introducing the amendment, this was one of the very strong recommendations that the Constitution Committee made in its report on judicial appointments. The Minister has referred to his kindness in coming once again to speak to the Constitution Committee between Second Reading and Committee. He gave a very strong indication —and I do not think I say anything inappropriate—that he was favourably disposed to matters which we suggested counted as leadership matters in the question of diversity. He will remember the remarks he made on Monday when we spoke again about gesture politics in relation to another amendment, where he said that this was not about gesture politics, but about leadership and political leadership. I hope he will be consistent in his reply on this amendment.
Lord Falconer of Thoroton
My Lords, in 1997 I had the privilege of becoming the Solicitor-General. The first speech I made outside Parliament was in Nottingham, and the person who preceded me on that occasion was Mr John Selwyn Gummer, now Lord Deben. He said in his speech, “We are so lucky to have Charlie Falconer here. He is going to make a speech, it’ll have been written by his officials. It’ll be inspirational, but not so inspirational that you would want either legislative change or any additional expenditure of money”. It was exactly the same point as the noble Lord, Lord Deben, made just now: there is an important point in these amendments, and there needs to be an active and continuing role for the head of the government-end of the story, the Lord Chancellor, and the head of the judicial-end, the Lord Chief Justice, as well as the head of the appointments commission, in looking at the detail of issues and actually taking active steps to ensure the ability to promote diversity.
I am very grateful to the noble Baroness, Lady Prashar, for giving practical examples of what the Lord Chancellor can do. The Lord Chief Justice is able, for example, to make arrangements for working conditions which will promote diversity. The Judicial Appointments Commission will be actively seeking to promote diversity, all the more so now that the tie-break provision is likely to be in the Bill. The effect of our proposals is that everybody is in it together in promoting diversity. I very much adopt the approach of the noble Lord, Lord Deben: it is a basic requirement for the head of an organisation that is appointing people, whether they be judges or any other group. I hope that the Minister will feel able to embrace the basis of those proposals.
Crime and Courts Bill [HL]
Baroness Jay of Paddington Excerpts(13 years, 9 months ago)
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Lord Lloyd of Berwick
I am grateful to the noble Lord for intervening again. I had interpreted his question at Second Reading as referring to diversity as a whole, and not limited to the number of judges who had been to public school. The Government’s case is based on the need to appoint more women judges, rather than more men, from people who have not been to public school. I am afraid that I do not have the comparative figures from 1998 and today on those who have been to public school, but I could perhaps find them and let the noble Lord know in due course.
The lesson that I draw from the figures that I have given is surely clear enough. If you want more diversity at the top, in the sense that Government and all of us want diversity, you must start at the bottom and work up, as we have already done and as the figures show. Women with family commitments are already being appointed in large numbers as part-time judges to the circuit Bench and below. In due course, the best of those women—and I can tell the Committee that from my experience the best are very good indeed—will, like the best men, reach the top via the High Court and the Court of Appeal. Yes, we all accept that it is a slow process, but there is no short cut to the top—a short cut implied in the proposal to allow women to sit part time in the Supreme Court—nor should there be such a short cut without infringing the overriding principle that the appointments must be solely on merit.
I have one last point. Introducing part-time judges into the Supreme Court would, on any view, be a major change. The court has been in existence only since 2010. It is surely too soon to effect such an important change without much more thought and further consultation. This is a point that I suspect will be developed by the noble Lord, Lord Goodhart. The answers given to question 13 in the recent consultative exercise would have been all but useless in relation to the Supreme Court, even if the basis on which that question was asked had been comprehensible, which it was not—to me at any rate. In contrast, the composition of the Supreme Court was given much thought by the Select Committee in 2004. The noble and learned Lord, Lord Falconer, was a member of that committee as Lord Chancellor and he played a full part. He will remember that there was much discussion about whether the Supreme Court should consist of 15 judges, as some thought, or nine, as others thought, so that it could sit en banc. However, it was never once suggested by the noble and learned Lord or anyone else that we ought to have part-time judges in the Supreme Court. Yet the diversity problem at that time was even greater than it is today.
Baroness Jay of Paddington
My Lords, I simply wish to ask the noble and learned Lord whether or not the strictures that he has applied to appointments to the Supreme Court would apply also to the High Court and the Court of Appeal, because—I speak in my capacity as chairman of the Constitution Committee, which the noble and learned Lord kindly cited—we recommended that the Senior Courts Act 1981 should be amended to allow flexible working to be included at a senior level, but not at the Supreme Court.
Lord Lloyd of Berwick
Indeed. I have to answer the noble Baroness by saying that I am certainly not at the moment persuaded that part-time judges should be appointed to the Court of Appeal. I simply do not see how it would work. I take the same view about High Court judges. The way to the High Court Bench for the sort of women whom the noble Baroness has in mind is via the circuit Bench. There is a clear way through for them. Indeed, one noble Baroness who is here today has taken exactly that course.
Baroness Jay of Paddington
My Lords, the Minister will undoubtedly reply to the broad-brush criticisms that the noble Lord, Lord Goodhart, has raised. I will just say, on one of his points, that the noble Lord, Lord McNally, and the Secretary of State, Mr Clarke, have been very kind in attending to the Constitution Committee since Second Reading. We have specifically discussed Clause 18 and Schedule 12 with them both, and I must put on record that their dialogue with the Constitution Committee at least has been productive.
I briefly return to the amendment of the noble and learned Lord, Lord Lloyd. Of course, I defer to him, his judicial colleagues and other noble Lords in their experience in the courts, but I would pick up the point made by the noble Baroness, Lady Falkner, about them addressing the issue of part-time working—or as I would more easily describe it, flexible working—in a perhaps somewhat narrow and therefore slightly more difficult way. The noble and learned Lords, Lord Woolf and Lord Carswell, gave evidence to the Constitution Committee during our inquiry into this matter. They said many of the things that they have said tonight and many more things as well. I hear precisely the issues that have been raised about the practical problems. As the debate has widened slightly into the general issue of diversity and appointments generally to the judiciary—which was why I asked my earlier questions to the noble and learned Lord, Lord Lloyd, about which particular aspect he was concerned with—it may be of interest to the Committee if I quote from the Lord Chief Justice. In evidence to us, he said that,
“we should be able to organise the sitting patterns for female High Court judges or male High Court judges who have caring responsibilities, so that during, for example, half term”—
which was just one example they gave—
“they can be at home ... I think those sorts of very small changes … will help”.
I want the Committee to understand that there is not a uniformity of views among the senior judiciary, both past and present, about the absolute impossibility of trying to be more flexible in this way.
I also say, with some deference and temerity, that I wonder whether noble Lords and senior judges are perhaps looking exclusively at their profession and not looking more broadly at the ways in which other professions have adapted to flexible working over the past decade. I raised very briefly at Second Reading the example of the medical profession, which has had very entrenched working practices at the senior level, particularly in the surgical specialty, and has now adopted flexible working in a way that met with many of the same problems in theory as have been raised this evening and on other occasions about flexible working within the judiciary. The situation is, of course, different but some of the issues in principle were the same. The adaptation has worked, so that senior members of the medical profession are now much more broadly spread between the genders and there is a much greater sense of genuine diversity.
In this instance, perhaps I may refer the Committee to the evidence of the chairman of the Judicial Appointments Commission, who said to the Constitution Committee:
“This is the first profession that I have touched in my working life where there is not easy access to flexible working arrangements for senior positions. Having salaried part-time working in the High Court would be transformational”.
As I say, I speak with some deference on these matters, but it is worth the Committee hearing the views both of the chairman of the Judicial Appointments Commission and the Lord Chief Justice.
Baroness Butler-Sloss
My Lords, I am sorry that yet another former senior judge is speaking. I recognise entirely the advantages of flexibility, but in this area there is a limit, and I want to say a few words about it. As a woman, I strongly support diversity on the Bench, particularly having been one of the earliest women judges. I also support encouraging those who leave either side of the legal profession in their thirties and forties for family reasons, very often to bring up young children, so that they can come back and sit on the Bench at a suitable level. To sit part time as a district judge or the judge of a tribunal is an excellent way of wooing back those who we would otherwise lose, to the detriment of the administration of justice. They are an obvious pool for promotion to more senior judicial posts. However, the point comes on the ladder to senior positions when a part-time judge inevitably will be less useful, and there would be some serious objections and disadvantages to part-time sitting.
I can see that it could be difficult for many centres where circuit judges try long and difficult cases, but it would be even more difficult for High Court judges and above. Perhaps I may give two examples. High Court judges, of which I was one for several years, often try—as one would expect—long and complicated cases that last for weeks, months or, occasionally, years. Listing officers would have real difficulties in listing cases if there were part-time judges. Further, as the noble Lord, Lord Thomas of Gresford, has already pointed out, High Court judges go out on circuit for six weeks or sometimes longer. They are a long way from home and return only at the weekends. As a High Court judge I went out on circuit and I can tell noble Lords that, as the mother of a teenager and two younger children, doing so was not easy. However, it is manageable. I felt that otherwise I could not be a High Court judge.
This leads to the second disadvantage. If there are part-time judges at the highest levels, the full-time judges in heavy cases would be likely to bear the heavier burdens. They would try the longer cases. That is because if there is to be any flexibility at all, and a case is going to last for six to nine months, it is unlikely that someone who wants to sit part time would actually be able to take it. That is particularly the case when going on circuit and there is a long case that may take the whole term. How on earth is someone who would prefer to work part time going to leave the family to take a long case? That would be certain to produce a certain degree of resentment among colleagues, who would be expected to take those cases because the part-time judge really could not take on the burden.
In the Court of Appeal, where I also sat, and in particular the Supreme Court, where I did not sit—and they are the purpose of these amendments—the idea of part-time sitting seems very difficult to achieve. How would it work in practice? However, most judges in the Court of Appeal and, perhaps I may say, even more so in the Supreme Court, are older. If candidates wanted the job at that stage of their lives, they would be able to give a full-time commitment, having given a part-time commitment when they were younger and had children to care for. I have to say that by the time I was in the Court of Appeal my children could manage on their own and I had to go home and worry less often about what they were doing—slightly less often since, as a mother, one does not ever stop worrying about one’s children. I cannot understand, therefore, why those who start out as part-time judges at a lower level and who are clearly high performers and ought to rise up the ladder, as I went up having started as a district judge, cannot, when they are older, take on the full-time commitment that they were unable to bear when they were younger and had responsibilities for children.
I have to say also that if these clauses are intended as a gesture to underline the undoubted importance of diversity, and are not intended to be reapplied in the higher courts, I would not be too worried. If, however, as I fear, the Judicial Appointments Commission feels that it is its duty to try to apply these clauses when and if they become law, feeling that it will be criticised if it does not do so, that will be very difficult to achieve. If it is achieved by the commission, I believe that it would create major problems. We have to think again about this. I really do not understand why older women, having got over the problems that required them to work part time, could not take on a full-time commitment in the Court of Appeal and the Supreme Court.
Baroness Falkner of Margravine
My Lords, I will comment briefly on this point. In his closing remarks the noble and learned Lord, Lord Lloyd of Berwick, asked an interesting question that is posed frequently: where there is a tie-break, as I would refer to it, what should be done if there are two candidates of supposedly equal merit, one of whom is a woman and the other, for example, is from an ethic minority? I note that the report of the Constitution Committee gives a lot of assistance in how we should define merit but makes the point that, certainly in large-scale selection processes, there could conceivably be candidates who end up in a tie-break: in other words, who are assessed to be of equal merit.
It would be quite straightforward to apply the test in those circumstances. You would look to see which group is more underrepresented than the other group and, in the case where there are two from underrepresented groups, appoint the one that was not to be found there. That would be fairly straightforward. With more senior appointments, it is entirely conceivable that it would be much clearer. We have heard that there is one female and no ethnic minority member of the current Supreme Court. In that case, it would be fairly straightforward, if the candidates were tied and came out equally in an assessment, you would go for the ethnic minority candidate. Although you would want to increase the gender diversity, on such an occasion, you would need to increase the diversity overall.
I also make the point to the noble and learned Lord that blatantly nobody is seeking to have the senior judiciary reflect the people they serve, because the people they serve on the whole are there, particularly in criminal cases, because they have done wrong. Nobody is suggesting that. However, the Constitution Committee’s report makes clear, as do a lot of other reports, that in senior positions in life it is terribly important for an inclusive society to have people who are representative of different strands of society as a whole. I rest my case there.
Baroness Jay of Paddington
My Lords, I will just make one rather straightforward point. I think the noble and learned Lord, Lord Lloyd of Berwick, said in relation to the previous amendment that he felt that this was simply gesture politics and somehow the phrase that we used in our report, which the noble Baroness, Lady Falkner, has now repeated, about sending out “a strong signal” by adopting this part of the Equality Act was simply inappropriate in legislative terms. I only say that the experience that we heard, particularly from abroad, about the way in which change had been brought about in judicial systems in other countries—I would cite particularly Canada—was that it came from very strong leadership from the top. That may be either in practical terms or, quite importantly, in terms of what the noble and learned Lord, Lord Lloyd, if I may say so, refers to, in a slightly deprecating way, as gestures but which I regard as importantly symbolic of a change of attitude at the top. In these terms, that means both ministerial and judicial and therefore conveys what I hope would be a change that would percolate down through the system.
Lord Falconer of Thoroton
My Lords, I am in favour of the amendments proposed in paragraph 9 in part 2 of Schedule 12 and am therefore opposed to the amendment that the noble and learned Lord, Lord Lloyd of Berwick, advances.
I speak from my experience of being engaged in judicial appointments as Lord Chancellor, which is not the same as that of the noble and learned Lord, that there is always somebody who is the best candidate. My experience of judicial appointments is that you are very often comparing people who came with completely different experiences and particular specialities, who are both aiming to fill the same position. You could have a solicitor who was very experienced in dealing with general litigation, widely admired for his wisdom and sense, and a criminal barrister widely admired for her advocacy skills. The idea that one was better than the other and that one should approach judicial appointments on the basis that one was trying to grade the candidates for an Oxford First as 1, 2, 3 and 4 was not remotely my experience.
I am always suspicious of people who advance arguments along the lines of, “I live in the real world”. The real world involves making comparisons between people where it is essentially not possible, in any meaningful way, to grade them as 1, 2, 3 or 4. You will find that there are people applying for jobs who are of equal merit. That is the position, whether you are dealing with an appointment for one position or with a wider appointment, for example encouraging people to fill 15 posts as circuit judges—
Referendums: Constitution Committee Report
Baroness Jay of Paddington Excerpts(15 years, 5 months ago)
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Baroness Jay of Paddington
My Lords, the whole House will be very grateful to the Minister for taking the trouble to give us his personal analysis and description of his reply to the debate. It is very encouraging to hear—as I asked at the outset—that some of the things which were raised in the committee’s report have already been adopted by the Government. We understand, of course, the problems of dealing with this kind of “take note” debate while legislation goes through the other House.
I welcome my noble and learned friend Lord Falconer of Thoroton back to the Front Bench. We look forward to his continuing involvement in constitutional issues although the now famous Mr Mark Harper may be less enthusiastic. I congratulate all noble Lords who have spoken in this very distinguished list of speakers we have heard from this afternoon. I am particularly grateful to those who have commented favourably on the quality and timing of the report. However, as I said at the outset, that praise is primarily due to the noble Lord, Lord Goodlad, who I was delighted to note took part in the debate.
As so often in your Lordships' House, this type of debate has attracted an enormously authoritative group of views from people who have had various experiences in different types of referendums, which they have reported very faithfully. I hope that the House will not think it unfair of me to say that most of those contributions reflected the general scepticism about referendums conveyed in the report. I, of course, support that given the part that I took in the committee’s inquiry.
We have heard from a large number of speakers—this was also noted by the Minister in his conclusion—who did not take part in the committee proceedings as they were not members of the committee. That has enormously enriched the debate. I go so far as to say that today we have had a very powerful form of pre-legislative scrutiny of the political parties and referendums Bill, which we hope will come to us in due course. I hope that we all look forward to those deliberations. Like the Minister, I think that at Second Reading we shall hear again in one form or other some of the contributions made this afternoon. In the mean time, I hope that the House will accept the Constitution Committee’s report on referendums as a timely contribution to our further deliberations.
House of Lords Reform: Committee Membership
Baroness Jay of Paddington Excerpts(15 years, 10 months ago)
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Lord McNally
My Lords, when we first meet I will draw those statements to the attention of the chairman, because they give a succinct work-in-progress for us.
Baroness Jay of Paddington
My Lords, given that the coalition has clearly set out the policy that it wants to see in terms of the Bill to be presented to both Houses of Parliament, what is the agenda, the remit, for this committee?
Lord McNally
The remit for the committee, taking into account what the Convener of the Cross Benches has just said, is to prepare a Bill. One of the great weaknesses of all our discussions over the past 10 years has been that no one has had a bone to chew on. We are going to produce a Bill.