The Minister of State, Home Office (Lord Henley)
My Lords, I hope that I can deal with both amendments relatively briefly. I can say to the noble Lord, Lord Rosser, that the list of the NCA’s strategic partners currently includes, as he said,
“such persons as appear to the Secretary of State to represent the views of local policing bodies”.
We have used those terms because local policing bodies include not only the PCCs but two others—the Mayor’s Office for Policing and Crime, and the Common Council of the City of London, which acts as the police authority for the City of London police area. For that reason, the noble Lord’s amendment is completely unnecessary in that the provision achieves everything he seeks. Having said that, I accept what he says about the necessity of discussing all these matters with the people he was concerned about. Just to put him at ease, the term “local policing bodies” covers them all.
I turn now to my noble friend’s amendment, Amendment 68. I think she said that there was a time when a fiction was maintained that the intelligence and security agencies did not exist. We now acknowledge that they do exist and we accept that the functions and responsibilities of these agencies go much wider than purely crime reduction and criminal intelligence. They have a limited statutory function in relation to serious crime because that is not their primary focus and they are therefore not included in the list of partners that the Home Secretary or the director-general must consult—it is the word “must” that I stress to my noble friend on this occasion—when setting strategic priorities in drawing up annual plans. However, I can give her an assurance that the security and intelligence agencies will have an important relationship with the NCA. Provisions in the Bill allow the Home Secretary and the director-general to consult them when it is appropriate to do so. What we think is not appropriate is the use of the word “must” here, and that is why we have not included the agencies in the list set out in the interpretation clause, Clause 16.
I hope that that explanation is sufficient for my noble friend, and that the explanation I gave with regard to Amendment 67 is sufficient for the noble Lord, Lord Rosser.
Lord Rosser
I thank the Minister for his reply and for confirming that the reference to local policing bodies includes a police and crime commissioner. I think he also said that the provision has been written in this way—namely with a reference to local policing bodies—because, as well as a police and crime commissioner, it also includes the Mayor’s Office for Policing and Crime and the Common Council of the City of London. That rather begs the question of why earlier in the clause, where a “policing body” is also defined, it states that it means a police and crime commissioner, the Mayor’s Office for Policing and Crime and the Common Council of the City of London. When we look down the same page to the “strategic partners”, why does the clause not make it equally clear by simply repeating that they include a police and crime commissioner, the Mayor’s Office for Policing and Crime and the Common Council of the City of London, instead of describing them as “local policing bodies”? Alternatively, if the phrase “local policing body” is satisfactory, why in the reference earlier on the page to “policing body” does it not simply say, instead of setting out the first three categories, “local policing bodies”?
Lord Henley
My Lords, I am not a parliamentary draftsman—I do not think that I ever will be, and I am simple in terms of my understanding of the law. But even I, and I dare say the noble Lord, can probably grasp this one little point. If he looks up to line 4 on page 14 he will see that the meaning of “policing body” is set out in paragraphs (a) to (c):
“(a) a police and crime commissioner;
“(b) the Mayor’s Office for Policing and Crime”
“(c) the Common Council of the City of London as police authority for the City of London police area”.
Later the meanings under “strategic partners” are set out, with paragraph (c) stating,
“such persons as appear to the Secretary of State to represent the views of local policing bodies”.
The local policing bodies go back to “policing body” at that point. It does not take much understanding of drafting—I appreciate that I am not a draftsman—to understand that what is included in the first bit, “policing body”, must be included under “strategic partners”.
Lord Rosser
The only comment I would make in response to the noble Lord—like him, I have no great wish to prolong this matter—is that since the first reference is to “policing body” and the second is to “local policing bodies”, one might be entitled to ask, what is the difference between the two? Is there a subtle difference or not? Why is it not simply described again as “policing bodies” when it comes to the definition under “strategic partners”?
Lord Henley
I think that the noble Lord is protesting too much, but I will consult those who advise me on drafting matters and ask them whether they can give me a good explanation. I think that “policing bodies” must include “local policing bodies”, so there is no problem. The noble Lord is looking for conspiracies here, I suspect, but there is no conspiracy—it is straightforward, I can assure him of that. We are including the PCCs and the other two that I mentioned.
Lord Rosser
I assure the noble Lord that I do not think that there is a conspiracy. He has made it clear what the reference to local policing bodies covers and that is now in Hansard for the record. I do not believe in any conspiracy theory. However, I would certainly be interested to know, if he would write to me, why it is described as “policing body” in one place, with a definition, while a bit further down—under strategic partners—rather than repeating it as “policing body”, it says “local policing body”. One might wonder, why the difference? The Minister has said that he will look at it and write to me and I am extremely grateful for that. No, I do not believe there is a conspiracy, because the Minister has made it clear that police and crime commissioners are included in the reference to local policing bodies. This amendment sought to ensure that that was the case and in the light of the Minister’s response, I beg leave to withdraw the amendment.
Lord Beecham
I shall speak to Amendments 68A, 68B and 68C and, notionally, give an indication on the stand part question on Clause 17.
I begin by repeating a declaration of interest: I am an unpaid consultant in the firm of solicitors of which I was a senior partner. I will be saying something about the Court of Protection, with which the firm and I have had dealings which partly inform some of what I will say this afternoon. In addition, I should perhaps, through an abundance of caution, declare that my daughter sits as a part-time deputy judge; but whereas I have occasionally briefed her when I was at the office, she has not briefed me in connection with today’s proceedings.
I shall go from the very particular to the general in discussing these amendments, and deal first with Amendment 68A, which seeks to remove the limits on the numbers of sittings that magistrates may make when sitting in the family court. The noble and learned Baroness, Lady Butler-Sloss, raised this matter at Second Reading and I share her opinion that it is undesirable to impose such a limit, given the necessity of building up expertise and providing continuity on the part of that part of the magistracy which deals with these very sensitive family issues. That is not a view universally shared, but it is my view and it will be interesting to hear the Government’s response and their justification, if they see that there is one, for maintaining the limit. I believe that the Norgrove report advocated its abandonment and it has logic on its side.
The remaining substantive matters are Amendments 68B and 68C. I should say immediately that the indication that I would move that Clause 17 not stand part of the Bill was a procedural device to allow a general debate which has been superseded by the amendments that I have now tabled. I will not move that Clause 17 not stand part of the Bill. We accept that it is desirable to move to the structure of single courts. The question is how they will be administered and what steps can be taken to ensure that the whole system of justice is adequately reviewed, kept under review and improved from time to time.
Amendment 68B seeks to require a report on the creation of the single court and how it works. As I say, we accept the concept in principle. We would like the Government to undertake a review after a relatively short time to see how it works in practice. There are concerns—some of which I will touch on when I come to the next amendment—around access, the venue and the like, particularly in the civil courts. Also there is a question about how the new family court will work. We are reasonably confident that it will work provided that it is adequately resourced but it would be sensible to review the situation before much time passes.
Having said that, my main concerns are reflected in Amendment 68C, which seeks an annual review by the Lord Chancellor of the workings of the whole Courts and Tribunal Service to take into account the experience that will accumulate over time, particularly the experience of practitioners and parties, but also to reflect other changes which are now in train. The civil justice system is undergoing massive change, not only as a result of the proposals in the Bill but also as a consequence of Lord Justice Jackson’s comprehensive if—as we have debated at some length on a previous Bill—controversial review which paved the way for a radically different approach to the provision of legal aid and advice, and the financing of litigation.
In pages 428-34 of his report, Lord Justice Jackson called for improvements in courts administration in the light of a pervasive feeling of dissatisfaction on the part of many litigants and their advisers, occasioned in part by a high turnover of staff and an excessive time spent on processing documents unlikely to involve judicial input. His report called for the establishment of regional centres which could attract long-term staff. It was felt that if you had a small number of centres instead of having them dispersed across the whole country you would be able to find and retain staff with the necessary expertise. There seems to be some force in that intention. However, Lord Justice Jackson stressed that it would,
“be wrong to compel everyone to issue proceedings at regional centres. Litigants who wish to issue claims in person at their local county court and to pay fees at the counter should be free to do so”.
In the event, the Government, for ever waving the banner of localism—I remind your Lordships that “waving” can be spelt in two different ways—have established a system in which all money claims have to be issued not just in regional centres but exclusively in Salford. Salford not only hosts the BBC and Manchester United, it also—
Lord Beecham
Not Manchester United. I withdraw that disgraceful slur on Salford or Manchester United—whichever way you want to look at it. All right, we have the BBC and the Lowry gallery in Salford and we now have the courts’ business centre there, too. Unfortunately, the establishment of that centre has led to a torrent of complaints about delays and loss of documents reported on several occasions; for example, in the Law Society Gazette on 12 February, 8 March and 12 May, when the headline was “Civil Court System Faces ‘Meltdown’”. On 24 May—as recently as that—it reported on a work to rule by staff intended to last until 31 July which is,
“evidence of a civil courts service reaching breaking point”.
The same story describes district judges being put up in hotels when on duty in Salford, because that is where they have to go, with a deputy district judge—not my daughter—complaining:
“New cuts are announced daily, and yet HMCTS is now squandering taxpayers’ money on hotels”.
Lord Ponsonby of Shulbrede
My Lords, I rise to support this group of amendments. Essentially, they are about monitoring the outcome of what has been the largest overhaul of the courts system for a long time. Many courts have closed and some have opened. Last Thursday, I went to the opening of the new Westminster Magistrates’ Court by the Lord Chancellor. It is a magnificent building and I hope that it will be a centrepiece of London justice for the next 100 years. While this is set for London, over the whole country—including London—there have been many closures of smaller courts, which mean we are moving away from the principle of local justice which is administered locally. The reasons for these sweeping changes should be monitored and that is the main purpose of this group of amendments.
I will now move to the idea of a single family court with a single point of entry. I understand that this change is generally welcomed by all those involved in the family court system. I will repeat a point that has been made before, that lay magistrates are looking for reassurance that they will continue to play an important part in the family proceedings courts. When I have raised this issue before, that reassurance has always been forthcoming from Ministers. I repeat that request today, although it will be in the details of the proceedings of the courts themselves—which I understand will be a separate Bill at a later stage—where the lay magistrates’ concerns will be most likely to get their reassurance.
Amendment 68A states:
“There shall be no restriction on the number of days that a family magistrate may sit in the family proceedings court”.
That is to meet the recommendation of the Norgrove report, as my noble friend Lord Beecham said. As the noble and learned Baroness, Lady Butler-Sloss, said, the main purpose is to increase flexibility and case continuity for repeat hearings. It is my understanding that it is for the Lord Chief Justice and Lord Chancellor to determine both the maximum and minimum amount of sittings by magistrates, and it is not a matter for primary legislation. I would argue that it is important that lay magistrates maintain their activities outside court and are not professionalised through excessive sitting. It is right that the route to appointment as a lay family magistrate is through the adult criminal lay Bench, as it is today. That should continue. I acknowledge that it is a conundrum to meet the needs which the noble and learned Baroness, Lady Butler-Sloss said, while at the same time maintaining a lay Bench which is genuinely lay.
There is an answer. These matters could be determined locally by bench chairmen and I understand that experienced family magistrates can choose to give up their adult criminal work, with the approval of their bench chairman. There are ways round these problems which can be administered locally. The purpose of this group of amendments is to look at the many changes and be reassured that the Government want to review them, write reports about them and keep an open mind about what they are introducing. I wholly support this aim.
Lord McNally
My Lords, I am very grateful for the opportunity to discuss these proposals. I should put on the record that Manchester United is in the borough of Trafford. It is very dangerous for people such as the noble Lord, Lord Beecham, to wander west of the Pennines with football knowledge: they are just not up to it.
Lord Beecham
The noble Lord will acknowledge, and I am pleased to say, that sometimes it is very dangerous for Manchester United to venture to the north-east.
Lord McNally
I agree. The noble Lord kindly gave me a plank on which to walk to firmer ground. His points about the operations of the Court of Protection are wider than the scope of this Bill and it would be better if I write to him and put a copy in the Library of the House. This has been mainly a debate about the fundamental overhaul of the civil and family court system in England and Wales, which has the aim of providing an effective, proportionate and efficient system for resolving disputes.
With these principles in mind, Clause 17, as has been said, establishes a new single county court and a single family court for England and Wales. In January 2008, the Judicial Executive Board commissioned the former Lord Justice of Appeal, Sir Henry Brooke, to conduct an inquiry into civil court unification, and the noble Lord, Lord Beecham, quoted from Sir Henry’s report. In that report, Sir Henry recommended that there should be consideration on the creation of a single national court.
Our proposals mean that a single court will provide a more efficient civil justice system where litigants can achieve a more efficient, proportionate and speedier resolution to their disputes. Access to justice will be increased as the single county court will enable Her Majesty’s Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in a cost-effective way. Court users in general will see a more responsive and consistent service through more effective use of information and communication technology, and the ability to centralise and standardise back office functions.
The noble Lord, Lord Beecham, mentioned the record of the business centre in Salford, which processes 1,800 claims every day. It does that within two to three days of their receipt. Some concerns have been raised but they are mainly as a result of bedding in a new service. The service is on a par with that previously experienced in the individual county courts.
Turning to the new family court, members of the public bringing family proceedings before the court rarely do so as a matter of choice. In many cases it is preferable for the parties and any children involved to be helped to resolve their differences outside the court arena. However, there are cases that are properly and appropriately brought to court for a judicial decision. The Government consider it is vital that individuals, many of whom are under stress when bringing family proceedings to court, are confronted with a system that is easier to use and access, and which provides swifter resolution of issues than is possible under the current court structure.
As your Lordships will be aware, the proposal to establish a single family court came from the independent review of the family justice system by a panel chaired by David Norgrove. A single family court will provide clarity and simplicity for the court user. It will increase accessibility to the court and reduce confusion. In particular, it will help those involved in family proceedings without representation who currently may be unsure whether their particular application should be made to a magistrates’ court or a county court and, if so, which category of county court.
The creation of a single family court will allow cases to be allocated appropriately by a judicial gatekeeper on the issue of proceedings, as all judges and magistrates hearing family matters will be judges of the family court. That flexibility will benefit the court user as the early identification of the appropriate level of judiciary will minimise delay. As with the new county court, the creation of the single family court will also lead to greater efficiencies in the use of administrative and judicial resources.
Lord McNally
My Lords, the proposal of the noble Lord, Lord Beecham, is very much in line with what we are trying to do but I cannot believe that it is necessary to have a statutory duty. We went through some of this in the LASPO Bill. I think that sometimes noble Lords do not accept just how much these days people get their information via the telephone and the internet, and from well-prepared, well-produced literature. There is a role for the voluntary sector and certainly we will be willing to explore with it the role it can play. However, surveys we have carried out show that only a small minority of attendees at court counters were there to seek information. Overwhelmingly, people get their information through well-produced literature, the telephone and the internet. Part of the thrust of the reforms we are carrying through at the MoJ is to make sure that our online services are as full as possible with information and guidance to steer people through the processes.
Yes, it is quite true that places such as the CABs can play an important part in being the first point of contact to help people to go online and make the right phone call. Certainly, as I said, we would be willing to talk to third sector advice agencies. Indeed, the MoJ and the court services already provide some grants to those organisations for that purpose. I recognise the importance of ensuring that information is widely available without requiring citizens to travel to their local hearing centre to find it. Her Majesty’s Courts and Tribunals Service already provides a wide variety of information to users and does so through a number of different channels, including websites, telephone and at court counters. In doing so, we already routinely work with third sector organisations. To keep pace with how citizens access information, and in keeping with other public services, we believe it is more appropriate to focus resources on providing information through online and telephone services so we can better serve the population as a whole to gain access to information from anywhere at any time. Equally, when people attend court, they will continue to have the information that they need to use our services effectively. With the assurance that county court users will continue, as now, to be provided with appropriate information, I hope that the noble Lord will be willing to withdraw his amendment.
Lord Beecham
It is certainly possible to underestimate the degree to which people access online services, but it is equally possible to overestimate the willingness and capacity of people to use such services or, for that matter, the adequacy of the services themselves. In endeavouring to prepare for today’s debate, for example, I went on to the MoJ website to track down documents referred to by the Minister, Mr Djanogly. I simply could not do that. It might well have been me, but it also might have been the MoJ. I cannot believe that it is universally the case that people, particularly people in sometimes difficult and distressing circumstances, which is why they are going to court in the first place, will necessarily be able to find information easily.
I know that the Minister is well intentioned in this, but it would be helpful if he could indicate whether, by the time we get to Report—after all, with the Summer Recess, it will be some months before we do that—he would endeavour to have these discussions with the third sector and indicate an outcome. At that point, it may not be necessary to press the matter further, but I would like something a little more concrete than good will before abandoning the proposal, for which I am very glad to have received the support of the noble and learned Lord, Lord Woolf.
Lord McNally
The noble Lord said that some in the voluntary sector had said to him that they had ideas. Short of committing money, I am very willing to talk to them about this issue, and we can look at it and report back at Report—perhaps not with an amendment from him. My good will is certainly there, but I believe that with understandable websites, the telephone and the use of the voluntary sector we can meet his concerns.
Lord Beecham
I am grateful for that assurance. I know that the Minister is sympathetic to the objective, if not necessarily the means. I hope that he can have some discussions with the sector and resolve matters, but I shall reserve my position until then. I beg leave to withdraw the amendment.
Lord McNally
Lord McNally
My Lords, wearing another hat, I am a member of the public business committee that guides public business through both Houses. That business committee usually takes the strongest possible exception to any government department in any Bill where a large number of government drafting amendments appear on the order paper. So I am a little bit embarrassed to be moving this amendment, although I am assured by those who advise me that the amendments are entirely necessarily.
The amendments cover a number of pages in the Marshalled List, but they are technical in nature. They include a number of minor or consequential amendments to take account of the creation of the single county court and single family court. With the creation of the single county court, the 170 existing county courts will cease to exist as separate courts or jurisdictions but will remain as hearing centres with court offices attached to them. Perhaps I can use this opportunity to answer a point made in an earlier debate. No, there is no secret hit list behind this legislation in creating the two single courts. But what is left are numerous statutory references to “a county court”, which now need throughout the legislation to be amended to “the county court.”
However, some provisions require more than merely substituting one word for another. In some cases, the relevant provisions extend to other jurisdictions, most notably Scotland and Northern Ireland. Accordingly, although still consequential, some amendments require further work to ensure that they have effect only in England and Wales. In other cases, when certain proceedings are required to be undertaken in a county court in a particular district, it has been necessary to amend those provisions to reflect the fact that there will now be only one county court with a general jurisdiction. In future and where necessary, specialist jurisdiction will be conferred on particular hearing centres by secondary legislation.
Amendments 71 and 72 clarify the rules designed to prevent any conflict of interest by part-time judges in the county court. The amendments provide that a part-time judge in the county court may not act as a judge in relation to any proceedings in the court in which he or she, or anyone with whom the judge is in practice, is directly or indirectly engaged as a legal representative. The amendments are needed in light of the expanding number of business entities within which solicitors may now work following the enactment of the Legal Services Act 2007. Amendments 80 to 82 introduce parallel provisions for the family court. As with the single county court, the amendments to the family court provisions are also largely minor and consequential. These amendments take account of the creation of a single family court from the existing three levels of court which currently deal with family proceedings in England and Wales.
As I am sure your Lordships will appreciate, the process of creating a new court necessitates a plethora of consequential amendments to various enactments. The majority of the amendments in this group are intended to ensure that the family court has the same jurisdiction as the courts that currently deal with family proceedings. This process involves, among other things, substituting numerous references across many different Acts to the “magistrates’ court” for the “family court”.
I should draw to the Committee’s attention one particular amendment relating to the family court. Amendment 83 removes the provision in new Section 31D of the Matrimonial and Family Proceedings Act 1984, which, by applying Part 1 of Schedule 1 to the Constitutional Reform Act 2005, gave the Lord Chancellor the power to require the Lord Chief Justice to make rules on the composition of the family court and the distribution of business among the judges within the family court. On further consideration, we have accepted that this power is unnecessary as the Lord Chief Justice will, regardless of this power, need to make rules to ensure the practical and efficient implementation of the single family court. As a result, we accept that there will be no need for any direction from the Lord Chancellor for him to do so.
There is also one final set of amendments in this group to which I should draw the Committee’s attention. Amendments 69, 70, 78, 79, 134, 136, 141, 142, 143, 144 and 146 all make consequential amendments to various enactments as a consequence of the renaming of chairmen of employment tribunals as employment judges. These amendments simply ensure that the relevant legislation reflect the new nomenclature. As I indicated in my opening remarks, I appreciate that there are quite a few pages of amendments in this group. But as I have tried to explain, they are overwhelmingly of a technical nature. I would, of course, be happy to explain particular amendments in further detail if necessary, but for now I would simply move Amendment 69.
Lord Beecham
My Lords, I am grateful to the Minister for giving us a quick guide through this jungle of amendments, about which I have nothing to say except that I note that the inflation of nomenclature is even greater than RPI: everybody now ends up as a judge, which I am sure is a great consolation to the legal profession. Clearly, these are technical and useful amendments and they should certainly stand.
Lord McNally
Lord McNally
Lord McNally
Lord McNally
I beg your Lordships’ pardon; I have lost my place. I apologise to the Committee for the delay in getting to my feet. I do not think that I have ever got so many amendments through at one go. I was overwhelmed by my success. However, I am slightly worried as the Chamber looks rather like a scene from the Alfred Hitchcock film “The Birds”, in which the birds start to appear rather menacingly. I am looking at the Cross Benches, where noble Lords are starting to come in and wait.
These amendments implement one of the recommendations of the Delegated Powers Committee’s report on the Bill. In line with that committee’s recommendation, the amendments provide that the first rules to be made specifying the functions of judges of the family court which can be performed by legal advisers or their assistants will be subject to the affirmative procedure. Any subsequent rules will, as the Bill currently provides, be subject to the negative procedure. I beg to move.
Lord Beecham
My Lords, I do not belong to the flock to which the noble Lord referred but I want to speak briefly to this amendment because I have some concerns about this matter, not so much as regards the procedure in terms of requiring resolutions but on the substance of the functions that are proposed to be conferred on legal advisers, as they appear to be very wide. Of course, justices clerks can take certain decisions now but it seems that that could be much extended under the provisions in Schedule 10, at page 124, which would allow the Lord Chancellor, with the agreement of the Lord Chief Justice, to,
“make provision enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser”.
It is a long time since I participated in a magistrates’ court, whether as regards the criminal law or a family court, but it is not clear to me what this is aimed at.
The concern has been expressed before in your Lordships’ House, and I have touched on it again today, about the potential to displace the lay magistracy with professionals. In that context I think of people who used to be called stipendiary magistrates but are now district judges. That is a displacement upwards in the qualification stakes, as it were, but this provision is not necessarily a measure of that kind. It would allow a legal adviser, a justices’ clerk or an assistant legal adviser to take decisions around family matters. I am not sure whether that is the intention but perhaps the Minister could indicate what sort of decisions are envisaged to be delegated to a legal adviser as opposed to a properly constituted family court judge or a bench of judges. I would be reluctant to see significant functions determined by the legal adviser to which this amendment refers. However, I may have got it wrong. I await the Minister’s enlightenment with interest, if there is such enlightenment.
Lord McNally
My Lords, I am happy to try to clarify the thinking behind this. The Delegated Powers Committee made this recommendation because it felt that the provision in the Bill represented an expansion of the existing power in Section 28 of the Courts Act 2003. Under this Act, functions of the magistrates’ court may be delegated in rules to justices’ clerks if a function is one which may be undertaken by a single justice.
As part of the creation of the family court, all judges, including magistrates, who deal with family proceedings will become judges of the family court. New Section 31O of the Matrimonial and Family Proceedings Act 1984 provides a power for the Lord Chancellor to make rules to enable functions of the family court, or of a judge of the court, to be carried out by a legal adviser. As is the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.
This new measure provides scope for justices’ clerks and assistant justices’ clerks acting as legal advisers and assistant legal advisers to the family court to carry out a wider range of the court’s functions than they currently perform. This is because the functions of the family court will be wider than those of the magistrates’ courts currently dealing with family proceedings, since the family court will have jurisdiction to deal with a wider range of family proceedings.
We are discussing with the judiciary how the new powers may be used. As I say, as in the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.
Lord Beecham
I am grateful to the Minister for that information as far as it goes but I am afraid that it does not help me to understand what kind of decisions might now fall to be made by a legal adviser or assistant legal adviser that are not currently being made. I appreciate that the Minister may not be able to give an answer to that at this point, but it would be very helpful to have that indication before Report. Presumably there is time for consultation. There must be some concept of what would be different under a new regime, if agreed by the courts. I understand, of course, the rules procedure and indeed the approval procedure that the amendment prescribes. However, I still do not understand the outcome, and I am aware that there is concern about it. My noble friend Lord Rosser has shown me a document from the London courts which expresses concern about this general issue of the movement of decision-making away from magistrates themselves, who will be judges of the family court.
It would be helpful to your Lordships’ House to understand exactly what difference is anticipated to emerge from these discussions and consultations in the actual operation of the courts—where decisions will be made, who will make them and what they would cover. Again, I repeat that I do not expect the Minister to deal with that tonight, but it would be helpful to have an assurance that we can have clarity about this when we get to Report.
Lord McNally
It is a very fair question and I will try to give the noble Lord a very full answer.
Lord McNally
Lord McNally
“16A (1) In section 15(2) and (3) (service of process: endorsement by, and declarations before, justices of the peace etc) for “justice of the peace” substitute “judge of the family court”.
(2) In Schedule 2 (forms)—
(a) in the form numbered 1 (endorsement of summons) for “justice of the peace” substitute “judge of the family court”, and(b) in the form numbered 2 (declaration as to service) for “Justice of the Peace” substitute “judge of the family court”.”
Baroness Neuberger
Much of what I had wanted to say has been said by others, notably by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Kennedy and Lady Jay. I chaired the Advisory Panel on Judicial Diversity and we took a great deal of evidence from both men and women who were either judges or interested in becoming judges. Of the many components needed to create a more diverse judiciary, flexible working was pretty near the top of the list. It was near the top of the list for people in their late 50s and in their 60s, who were not on the whole talking about looking after children—although, like the noble and learned Baroness, Lady Butler-Sloss, I think one ends up worrying about one’s children for ever—but about caring for elderly parents.
Increasingly, because we are living longer, people in their 60s are caring for parents in their 80s and 90s. It is likely that people who are going to work as much as they possibly can in their 60s may still need to work more flexibly than was hitherto the case because they need to look after, or make sure that somebody else is looking after elderly parents. That point was made to me almost as much by men as by women and almost as much by solicitors as by people who came from the Bar. We must make provision for flexible working given the way that our population is ageing and that we are likely to look after parents in our 60s and 70s.
Therefore, the need to be more creative and flexible in how we think about these issues has never been greater. That was felt very strongly by people from whom we took evidence. Those people, including some members of the present High Court, also said that to them flexible working was not about working two days one week and three days the next, but about working possibly for nine or 10 months of the year and simply taking slightly more holiday than other people. That holiday, which would in fact be to allow them to carry out their responsibilities, would simply have to be factored into the system. Sending out a message to the wider world that we are not prepared to consider flexible working for the judiciary when we consider it for every other profession in the country would look very strange indeed.
Baroness Northover
I suggest that the debate on Amendment 115 be adjourned and that the Committee does not resume again before 8.20 pm.
Lord Falconer of Thoroton
My Lords, my understanding is that we are debating the part-time provisions relating to the High Court, Court of Appeal and the Supreme Court. I understood that the noble and learned Lord, Lord Lloyd, said that it might be sensible then to deal with the other amendments in this group. I have in mind in particular the tie break provision amendment and my amendment about whether or not the Lord Chancellor should remain involved in appointing circuit judges. As I understand it, what was envisaged was that the noble Lord, Lord McNally, would reply on the part-time issues, then, without going on to another group, we would move on to the tie break and maybe the other amendment as well. Although the noble Baroness, Lady Brinton, has dealt with the tie break, at this stage I will restrict my remarks to the part-time issue, following the lead of the noble and learned Lord, Lord Lloyd. I would envisage that the noble and learned Lord, Lord Lloyd, would open the debate on the tie break as well.
Lord McNally
We had better get this straight from the start. The noble and learned Lord, Lord Lloyd, said that he wanted to move Amendment 120. He did not mention the amendment of the noble and learned Lord, Lord Falconer. I will take advice from the clerk, but if we are discussing only Amendment 115, whether Clause 18 should stand part of the Bill and, presumably, Amendment 116, then in normal circumstances we would go on to Amendment 117, not Amendment 120.
Lord Falconer of Thoroton
Our problem is that if I talk about the tie break, it is before the noble and learned Lord, Lord Lloyd, has made his points about why the tie break is wrong. The natural sequence of events is that I speak, then the Minister, we do not put a question but go round again, which is perfectly okay in Committee. If everybody is happy, that is the right course that I would envisage. A preliminary point: initially, I thought the noble Lord, Lord Goodhart’s, point was that the Constitutional Reform Act 2005 was such an important Act that it could never be amended. I tended to agree with that proposition. As I understand it, and I agree with this, he then went on to say that when a Bill makes a significant constitutional change, it is wrong to put it in the form of a schedule introduced by a section which does not, as it were, preview that it is a major constitutional change. The right way to make major constitutional changes, so that this House—which has a special responsibility in relation to constitutional changes—is aware of what is going on, is by an individual Act of Parliament.
I agree with the noble Lord, Lord Goodhart, in relation to this because here we are dealing with an important constitutional issue as regards the position of judges. Like the noble Lord, who is a practical and sensible Member of this House, I fear that we are where we are. We are in Committee and it is obvious that we will pass something along the lines of Clause 18 and Schedule 12. Therefore, it is necessary for us to debate the merits of those. But it is extremely important that the Government recognise that where one is dealing with important constitutional issues, it does not in any way inhibit any programme of constitutional change, it just means it is right that it is properly flagged up so that we know where we are.
Lord Falconer of Thoroton
I accept what the noble and learned Lord says and perhaps I may say that no one was more willing than he—his successor, the noble and learned Lord, Lord Judge, was the same—to accommodate people as much as possible. So in answer to the point of the noble Lord, Lord Thomas of Gresford, if it was difficult for individual High Court judges to go on circuit then the Lord Chief Justice, in my experience, was always reasonable and understood the difficulties. However, there were limits. The main one was that you would not agree to have as a High Court judge somebody who wanted to have half term and school holidays off. As the noble Baroness, Lady Falkner of Margravine, said, we are not talking about working Mondays and Wednesdays but about whether someone could work for a period but have the children’s school holidays off. There is currently a situation where a High Court judge gets three months off. Is it that much more different to say that school holidays could be taken off as well? That sort of flexibility would open the door to a group of people who currently would not feel able to accept appointment as a High Court judge.
The noble and learned Baroness, Lady Butler-Sloss, asked broadly why we do not do that at the lower judicial level. Absolutely not. Why should somebody who is 45 and has the quality to be a High Court judge be offered a part-time job only in a position that is essentially inferior to the one that they would otherwise merit? The noble and learned Baroness, Lady Butler-Sloss, then argued, and had some support from the noble and learned Lord, Lord Carswell, that it is very difficult if you have some part-timers to deal with cases that last for nine months. Again, with the greatest of respect to the noble and learned Baroness, who was equally a champion of diversity, there are a handful of those long cases. The idea that there would be resentment because a number of judges would be willing to do them and others would not is, in my experience, fanciful. With respect to the noble and learned Baroness, I reject that argument. I strongly support the Minister’s proposal in relation to part-time judges for the High Court Bench because it improves and increases merit. It opens and widens the pool. It has no effect whatever on merit. I am strongly in favour of it.
The noble and learned Lord, Lord Lloyd of Berwick, said it was okay for the circuit Bench but not for the High Court Bench. Again there is no logic and no ultimate justification for that position. We should, as a Committee, endorse the proposal because it indicates that we understand the pressures on successful professional people. We should not say that the High Court Bench—unlike being a consultant doctor, a successful barrister, solicitor, or architect—is the only place where we will not be willing to allow that sort of flexible working. I am sorry that she is not in her place but the noble Baroness, Lady Kennedy of The Shaws, was right when she said that it is about flexible working. Part time, as a piece of language, may be a slightly misleading suggestion. I strongly support the proposition for the High Court Bench.
The next tier is the Court of Appeal. I have indicated that the range of ages at which people are appointed to the Court of Appeal is between 45 and 60. Although there is no pattern, one could reasonably expect to go to the Court of Appeal after between six and 12 years at the High Court so we are talking about people in their early 50s, although there are some exceptions. I am quite sure that the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, were in the Court of Appeal in their late 30s, but normally early 50s is the sort of range, although there are some people who go later. Think about what your responsibilities were when you were in your early 50s in relation to looking after children. Again, I know of people in the current Court of Appeal who have adolescent children and some with children under 12. What is more, as the noble and learned Baroness and the noble and learned Lord will testify, some of them live outside London. So in addition to the problem of having caring responsibilities for children, they have to travel from far away, which puts increased pressure on them.
Should people have the option of saying that they would like to go to the Court of Appeal but would like to do it when there are school holidays or on some other part-time basis? It is said by the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Carswell, that this would cause great difficulty because there are long cases in the Court of Appeal. I completely agree with what the noble Lord, Lord Pannick, says. My experience with cases in the Court of Appeal is that they do not tend to last more than three days. I know from my own experience of a case that lasted two weeks in the Court of Appeal, but I imagine that that would be regarded as unusual. I cannot think of any other profession where it is said that two weeks cannot be accommodated for somebody who works flexible hours. So with the greatest of respect to the noble and learned Baroness and the noble and learned Lord, Lord Carswell, I would say that the idea that it will cause difficulties in the Court of Appeal is not right.
Finally, on the Supreme Court, the noble and learned Lord, Lord Lloyd of Berwick, started off by saying that there was no Supreme Court with part timers. First, there is the House of Lords, which has many part timers. The Lord Chancellor was a part timer as a Member of the House of Lords. It was also the norm for retired members to sit on the Judicial Committee the House of Lords, and indeed for retired members of the Supreme Court to sit in the Supreme Court. So the idea that the Supreme Court cannot deal with the arrangements of part timers is, with the greatest respect, wrong.
Secondly, in relation to the length of cases dealt with in the Supreme Court, my experience of cases in the House of Lords and in the Supreme Court is that they tend to be shorter even than cases in the Court of Appeal. There was one case that lasted over a week in the past few years, which was the Belmarsh appeal, but that was a very exceptional appeal. So in arrangement terms there would be no difficulty in having people in the Supreme Court who were part time.
The noble and learned Lord, Lord Lloyd, went on to another point. The proposal would make absolutely no difference, he said, because there is nobody whom he can envisage would be worthy of appointment who would want to be part time. First of all, we are talking about this being permissive, not compulsory. Secondly, how many people have caring responsibilities for elderly parents? I was describing earlier the fact that, when I sought to appoint one High Court judge, she told me that she could not take the appointment because she had responsibilities for her own elderly mother and the mother of her husband as well. How many people would want to be in the Supreme Court and would be capable of being there but have other responsibilities? I do not know—but I look around the world and I see part-time Supreme Court members, such as the noble and learned Lord, Lord Woolf of Barnes, in relation to the Court of Final Appeal in Hong Kong, or Sydney Kentridge in the Supreme Court of South Africa. Have those courts benefited from those part-time members? My answer is yes.
So if we were to agree to a provision that allowed part-time or flexible working members of the Supreme Court in the United Kingdom, there would be two benefits. First, it would increase the pool of people who would be able to apply. Secondly, it would lead to a sense that we thought that flexible working was available from the top to the bottom of our judicial system. I cannot think of a better message for us to send—and it would be one that was not just a gesture but would have an effect on increasing merit. So I and these Benches enthusiastically endorse the brave and sensible proposal that the Government have made in relation to part-time working in the Supreme Court, the Court of Appeal and the High Court.
Lord McNally
My Lords, I feel like sitting down. The noble and learned Lord, Lord Falconer, was quite right; when he was Lord Chancellor and put through his constitutional reforms the Liberal Democrat Benches gave him full and consistent support. The brain power behind that support was my noble friend Lord Goodhart. I was the political organiser. As the noble Lord, Lord McAvoy, will attest, the triumph of ideals must be organised, so I share the pleasure in these reforms. I also think it is right—we will have lots of discussion about this—that the reforms, good as they were and are, are capable of being tweaked and improved in the light of experience. Therefore, I am grateful to the noble and learned Lords, Lord Lloyd and Lord Falconer, for setting the parameters of the debate, as it were.
Before I go into the detail, I wish to deal with the general point raised by my noble friend Lord Goodhart. I understand where he is coming from and the need to acknowledge the importance of constitutional reform. However, as the noble and learned Lord, Lord Falconer, found from his own experience, the difficulty is getting parliamentary time to tackle this. You sometimes have to accept the necessity of putting very important issues into a broader based Bill. The Government are always faced with the dilemma—this is true of all Governments—of choosing whether to put provisions together in one Bill, as is the case here, or of delaying legislation on important and necessary reforms. We have chosen the former approach but the fact that these provisions are in Clause 18 and Schedule 12 does not for a moment diminish their importance. Wherever they sit in the Bill, I would expect your Lordships’ House to discharge its usual role in carefully scrutinising the Government’s legislative proposals. If there was any doubt about that, it should have been dismissed by the thorough way in which the House has filleted these proposals for two and a half hours this evening.
I turn to the merits of our reforms to the judicial appointments process and answer the concerns raised by the noble and learned Lord, Lord Lloyd. His amendments would delete from the Bill the key measures to promote diversity and flexible working in the Supreme Court. As the noble and learned Lord, Lord Falconer, said, “flexible” is the right word, not “part time”. Of course, we must ensure that the process through which our judges are appointed is fair, open and transparent. The longer I am in this job, the more I am in awe of the quality of our senior judiciary. They are a national asset and are respected throughout the world for their quality and independence, as the noble and learned Lord, Lord Falconer, said. However, this does not conflict with a requirement for greater diversity in the judiciary. Diversity in the judiciary is important to enhance public confidence in the justice system. The proportion of women and members of ethnic minorities is still too low, and this is particularly the case in the higher courts.
As the noble Lord, Lord Pannick, pointed out, progress in increasing diversity in the judiciary has been woeful and inadequate. We do not believe that we can rely on trickle-up. We consider that allowing flexible working in senior courts is an important reform to increase diversity, and that it will not detract from the principle of appointment on merit. I was recently asked by a very senior member of the judiciary, “Will our judiciary still be held in the same high esteem in 20 years’ time as it is today, if your reforms go through?”. I could look him in the eye and say “Yes, I believe that it will, but it will be a more diverse judiciary”.
The arguments made by the noble and learned Lords, Lord Lloyd and Lord Carswell, and by the noble and learned Baroness, Lady Butler-Sloss, is that flexible working in the Supreme Court is simply not practical, and that all judges of the Supreme Court need to shoulder their fair share of the business by sitting full-time. I simply do not accept these arguments. It is a judgment call, but we have no reason to believe that it cannot work to the benefit of flexibility and diversity. Regarding the virtuoso performance by the noble and learned Lord, Lord Falconer, I can see how he earned an honest crust at that game. However, the noble and learned Lord made a good point. Flexible working will not be compulsory but will provide flexibility and, as has been pointed out by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Pannick, the merit test would still be there. It is not a dilution but a move to greater flexibility, which we believe will allow for greater diversity.
Many of the arguments we have heard from the sponsors of this amendment reflect an outdated view of the family. As the noble Baroness, Lady Kennedy, explained so eloquently, we need flexible working not just to enable a woman in her 30s or 40s to balance her career with her caring responsibilities, but to enable women in their 60s to carry out caring responsibilities for teenage children. Equally, such caring responsibilities can extend to grandchildren, a disabled partner or elderly parents. As my noble friend Lady Falkner pointed out, we are not just talking about women but about ethnic minorities, and some of this flexibility will also apply to men who find the present system too rigid.
We need to allow men and women of all ages to meet such caring responsibilities and balance them with flexible working patterns. The noble Baroness, Lady Jay, and others noted that such arguments were put forward in the past to oppose the introduction of flexible working in other professions. It has been shown in the medical profession and elsewhere that flexible working arrangements can be readily accommodated. As I have said in this House previously, if anybody asks me what is the biggest difference I have seen, having worked in the Foreign Office and Downing Street in the 1970s and come back to Whitehall now in 2010 to 2012, I would say that it is in the diversity of senior advisers. If our Civil Service can achieve such diversity, why can the law not achieve it?
That is not to say that there will not be challenges in implementing this, and practical issues to work through in, for example, the listing of cases. However, we agree with the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, that these issues are not insurmountable. As he has indicated, most cases in the Supreme Court require hearings of only two or three days. As has been discussed, flexible working can take many forms, such as working during term times, or for nine or 10 months of the year, as the noble Baroness, Lady Neuberger, highlighted. Can I again pay tribute to her committee, which has not simply produced a report, but has kept on the case in terms of chivvying me and the Lord Chancellor in these areas? Moreover, if we are allowing flexible working in the lower courts, including the High Court and the Court of Appeal, the absence of flexible working in the Supreme Court could potentially deny an outstanding Court of Appeal judge the ability to consider applying for the Supreme Court.
I hope that the debate has, in a way, answered the concerns of my noble friend Lord Goodhart. These are important issues that are not to be taken lightly. I do not think that the House has taken them lightly but the case against the Government’s proposals has not been made—in fact, quite the contrary. The balance of the debate has been on our side.
Lord Woolf
Before the noble Lord sits down, perhaps I should mention the position of the noble and learned Lord, Lord Carswell. He did not want to absent himself from the later parts of the debate, but he had to return to Northern Ireland and has sent his apologies. I said that I would convey them to the House.
Lord McNally
Hansard will note that, with the full understanding of the Committee.
Lord Lloyd of Berwick
My Lords, I will be brief because I do not intend to divide the Committee. I am grateful to the Minister for his reply.
The noble Baroness, Lady Jay, was quite right to refer to the Lord Chief Justice’s evidence to her Constitution Committee. However, the point he was surely making was that there is already a great deal of flexibility in the High Court. That point was also made by the noble Baroness, Lady Falkner, during my speech. Indeed, it was made very recently by the noble and learned Lord, Lord Woolf. For example, if a judge is unable to go on circuit for family reasons or any other reason, he or she will of course stay in London and other arrangements will be made. That is already happening in the High Court. I say “he or she” because flexibility applies to both sexes; it applies to men as it applies to women. The thought seems to have been that somehow flexibility will help only women. That is not the case; it helps men also.
The noble Baroness, Lady Kennedy of The Shaws, also made a strong point on the importance of flexibility—as did the noble Baroness, Lady Neuberger. The truth is that we are all in favour of greater flexibility, just as we are all in favour of greater diversity. However, greater flexibility does not require the appointment of part-time judges. That is what this debate is not about. It is about whether part-time judges should be appointed not in order to give greater flexibility but to solve the never-ending problem of diversity—how to get more women into the higher courts. When the Minister said in his reply that flexibility and diversity for men and women were all one thing, he missed the whole point of this part of the Bill, which is intended to increase the number of women in the higher courts. All that I can say is that it will do no such thing.
Lord Lloyd of Berwick
I could not agree more; of course we are not talking about women but about, above all in this context, black and ethnic minority judges, as I made clear when moving the amendment. As the noble Baroness made clear, we are also talking about other forms of minority, including people with disabilities, for example. However, the whole thrust of this part of the Bill is intended, as one can see from the history, to get more women, as well as ethnic minority judges, into the High Court.
I will not say any more about those who have supported the amendment, except to emphasise the extremely effective point that the noble and learned Lord, Lord Carswell, made regarding the collegiality of the Supreme Court. I certainly had a sense of that when I was in the Supreme Court, and I also felt it throughout my time in the Court of Appeal, although one obviously does not have that sense as a High Court judge. We were all members of one court. I do not think anyone can tell what the effect of the appointment of part-time judges will be on that essential concept of collegiality in both those courts.
I should mention the point made by the noble and learned Lord, Lord Woolf. He was unable to imagine a woman who would be willing to accept part-time appointment to the House of Lords but not full-time appointment. The question comes back to this: if that is the case, the purpose of this part of the Bill is not to cure the problem of diversity. Instead, the purpose is to send out what the noble and learned Lord called a signal; a gesture. I am opposed to gesture legislation, which is what this amounts to. It will not make any difference in practice. Having said that, I beg leave to withdraw the amendment.
Earl Attlee
If the noble and learned Lord wants to speak to another amendment in this group, I would advise him not to withdraw his amendment. Otherwise the Lord Speaker will inevitably have to go on to further amendments in accordance with the Marshalled List.
Lord Lloyd of Berwick
I am very grateful to the noble Earl. I will defer begging leave to withdraw the amendment until I have moved the other amendment.
Earl Attlee
My Lords, the noble and learned Lord can speak to his other amendment if he wants. He cannot move it, but he can speak to it now.
Lord Lloyd of Berwick
My Lords, the second amendment in my name and the names of the noble and learned Lords, Lord Carswell and Lord Woolf, is concerned only with diversity. It affects the judiciary at all levels. The amendment would leave out line 27 of Clause 18 and Part 2 of Schedule 12.
The Government accept that judicial appointments must be solely on merit. However, the Government argue that there might be cases where two candidates were of exactly equal merit, like two candidates getting the same marks in an examination, in which case the woman or the black man should be preferred. At least, that is the idea. “Solely on merit” is thus to be given a special meaning.
How is it going to work? Let us suppose there is a vacancy in the Supreme Court. The candidates will almost certainly come from the Court of Appeal. Let us suppose that there are two candidates from the Court of Appeal. Their abilities will be well known to the selection commission. The Bill provides that the selection commission shall consist of an odd number of members, not less than five. Is it conceivable, I ask, that all five members would find the two potential candidates of exactly equal merit? The answer is no. I suppose it is just possible that two members of the selection commission might favour one candidate, and two might favour the other, and the fifth member of the commission might be unable to make up his mind one way or the other, but this seems so unlikely in practice that it should not be the subject of legislation.
I am not alone in taking the view that I do. The noble Baroness, Lady Neuberger—who is still in her place, I hope—the noble Lord, Lord Phillips, and the Lord Chief Justice, all doubted whether candidates for the Supreme Court would ever be exactly equal. So did Christopher Stevens, the chairman of the Judicial Appointments Commission.
The idea that the Equality Act might be used where there are two candidates of exactly equal merit comes from a recommendation of the advisory panel in its 2010 report. As the noble Baroness, Lady Neuberger, will recall, it was recommendation 21. In a progress report of May 2011, the Judicial Appointments Commission said that it had always been able to distinguish between the relevant merits of different candidates, and that it did not anticipate that the Equality Act would ever be relevant in practice. Therefore I suggest that the idea should have been dropped then and there; it was nothing but an idea.
The members of the Judicial Appointments Commission operate in the real world. Part 2 of Schedule 12, which is based on the idea that one can have exactly equal candidates for these posts, is a good example of the sort of make-believe world in which Governments so often seem to exist.
That leaves only one argument. It is said that even though Part 2 of Schedule 12 would be useless in practice, it would send out a strong signal that diversity is of importance. This was the view of the Constitution Committee, stated in paragraph 101. It was also touched on by the noble and learned Lord, Lord Mackay, at Second Reading.
I do not believe that legislation should be used for the purpose of sending out signals. Moreover, in this context the signal is surely rather demeaning. We would be saying to highly intelligent women lawyers, “You may not have been the best but be of good cheer, you were first equal”. If I were the first black judge to be appointed to the Supreme Court, I would want to know whether or not I had been the best candidate, as I would under the existing law. Under the new law, I would not know. If I was only equal first, surely I would want to know who the other candidate was—and no doubt the other candidate would want to know who I was. Moreover, if I were a black judge, what would happen if the other candidate were a woman? How would the equality principle apply in those circumstances? I have formed the view that the Equality Act is of no assistance in this context. Of course it is of great importance in many other fields, but in appointments to the Supreme Court and the Court of Appeal it is of no assistance at all: indeed, it could do nothing but harm in the manner that I suggested. I beg to move.
Earl Attlee
My Lords, the noble and learned Lord made a slight mistake. He did not beg to move; we can just carry on debating the amendments in this group.
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.
Lord Falconer of Thoroton
I am grateful to the noble Baroness, Lady Prashar, for explaining that our experiences are the same. One can test this simply by looking around the Chamber. If one had to make a choice between the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, I think that everyone would agree that they bring totally different characteristics to a particular job. Would we be able to say that one is better than the other? No, in my view they are of equal merit. This is a serious point.
If we assume that the argument is right, the question is then: is it open to the person appointing a judge—because this does not apply just to the Supreme Court, but from the top of the judicial system to the bottom—to say, for example, “We have one woman and 25 men in this job and we have before us people of equal merit. It might be sensible to increase the group with one more woman”? Apart from the judiciary, I cannot think of any other organisation in the world that would consider that to be a bad approach. It also involves moving on from an artificial approach that people have to be graded as number one and number two. I support the approach taken in the Bill and I do not support the approach of the noble and learned Lord, Lord Lloyd.
Lord McNally
My Lords, again I am extremely grateful to the noble and learned Lord, Lord Falconer, for his contribution. I will not labour the point, but there is a difference of opinion. Most of the contributors to the debate do not believe that merit is something that can be pinpointed with laser-beam accuracy. That is not the real world, as both the noble Baroness, Lady Prashar, and the noble and learned Lord, Lord Falconer, have so vividly illustrated. I must also say that we must be very careful to ensure that collegiality does not morph into “chaps like us”.
Lord McNally
My Lords, we should first thank the noble Lord, Lord Deben, for what in the film industry is called a cameo performance. It was none the worse for that. I am under strict instruction from the Box not to say anything rude about the judges, so I can take pleasure at one remove.
This is an interesting little debate. At this time of night, I am sure that the noble and learned Lord, Lord Falconer, will not press his amendment. However, I will take this back to the Lord Chancellor. If a former Lord Chancellor gives the kind of powerful warning that the noble and learned Lord has given this evening and is supported by people of experience, the least I can do is say, “They don’t think this is such a good idea”.
I would, however, say two things. Working with the present Lord Chancellor, I am absolutely convinced of his belief in the separation of powers. He is convinced of it, as am I and as is the noble and learned Lord, Lord Falconer, and he is very careful to try to ensure it.
The other thing I know from direct experience is that the Lord Chancellor is extremely robust in defending the independence of the judiciary and has reminded colleagues at the highest levels of government about the limits of criticising the judiciary. On those counts, we can be secure. The Lord Chancellor also retains overall responsibilities to answer to Parliament, which should not be underestimated. As the noble Baroness, Lady Falkner, pointed out from the report of the Constitution Committee, the evidence was that there is no real input from the Lord Chancellor on this tranche of appointments. Jack Straw said that and, in the robust language of the present Lord Chancellor, appearance and reality diverged where names were going past him that he did not know and he was supposed to give approval for. It was a paper exercise that he felt uncomfortable with. He felt that it was more sensible to give this responsibility to the Lord Chief Justice. I take the point, again made by the noble Baroness, Lady Falkner, about whether there are resource implications. Knowing the Lord Chief Justice, I suspect that he will call that in aid.
What the Bill provides is that for many judicial offices below the High Court, the Lord Chancellor’s powers in relation to selection decisions and appointments are transferred to the Lord Chief Justice, for courts in England and Wales, and to the Senior President of Tribunals for appointments to the First-tier Tribunal and Upper Tribunal. Where the appointment is made by Her Majesty the Queen, the recommendation for appointment will still come from the Lord Chancellor, but he will merely transmit the decision taken by the Lord Chief Justice or the Senior President of Tribunals upon the selection of a person for office following a selection process carried out by the Judicial Appointments Commission. The Lord Chief Justice and Senior President will be constrained in the same way as the Lord Chancellor currently is, in that they will receive one name from the Judicial Appointments Commission and either have to accept the selection, reject it or ask the commission to reconsider its selection.
These amendments would undo that transfer of such responsibilities from the Lord Chancellor to the Lord Chief Justice and Senior President of Tribunals. While we consider that it is important for the Lord Chancellor to retain accountability and ownership of the judicial appointments process as a whole, and a direct role in appointments at a senior level, we do not consider that there is a need for the Executive to be involved in each individual appointment below the High Court. It is not practical for him to have knowledge of judicial officeholders at a more junior level and his role in the appointments process, at this level, becomes a rubber stamp. We therefore consider it appropriate that for many judicial offices below the level of the High Court, selection decisions and appointments are made by the senior judiciary, but that the Lord Chancellor retains accountability for the appointment system as a whole. This measure also received the support of the Constitution Committee in its report on judicial appointments. However, I will draw to the attention of the Lord Chancellor the fact that a former Lord Chancellor has spoken so strongly on the issue, and we will ponder what has been said in this debate tonight.
Lord Woolf
In taking that message to the Lord Chancellor, will the Minister also convey the message that, with great respect to the Lord Chief Justice, the Lord Chief Justice does not know all the people who will be appointed? He will know possibly a few more than the Lord Chancellor, but I suggest that just as the Lord Chancellor would have to rely on advice, so would the Lord Chief Justice.
Lord McNally
Certainly, I will make sure that the Lord Chancellor reads today’s Hansard. The point is that it is advice that comes from the process of the Judicial Appointments Commission. Just as the noble and learned Lord, Lord Falconer, wants the Executive still involved, I am not so convinced and, even more importantly, nor is the Lord Chancellor. As I have said, we both take a view about the separation of powers of which this could and should be a useful symbol: the Lord Chancellor of the day would not be holding on to a rubber-stamping exercise, he would be leaving it with the Lord Chief Justice of the day. This has been an interesting mini-debate, which I will raise with the Lord Chancellor for further consideration.
Lord Falconer of Thoroton
I am grateful to the Minister for saying that he will raise this matter. Perhaps I may say that the Minister’s arguments were much better before he moved on to his written notes, which were of poor quality. On the point made by the noble and learned Lord, Lord Woolf, as regards the Lord Chief Justice knowing the candidates to be Admiralty Registrar better than the Lord Chancellor, I agree that that is an unlikely assertion. The implication of what the Minister said was that, unlike the circuit Bench, the deputy registrars and the Masters, the Lord Chancellor would be aware of all the candidates who would be going up for High Court appointments.
Speaking for myself, when I came from the Bar to being the Lord Chancellor, I was not aware of all the candidates. I would imagine that as regards the current Lord Chancellor—who I greatly admire and I believe utterly, with no doubts at all, to be a defender of the independence of the judiciary—90% of the people, if not more, who are being considered for the High Court Bench are equally unknown to him in relation to the circuit Bench. The judicial appointments system is not supposed to be on the basis that the Lord Chancellor knows the people and therefore has some input, but on the basis of him looking at the way in which the system works.
I found the friendly Minister saying, “I will give this a thought”, more attractive than the unsatisfactory nature of what was said in defence of the argument. Let me give the Minister two pauses for thought. First, if as Lord Chancellor you had not appointed one woman circuit judge for a year, you might want to ask about that in a way that the Lord Chief Justice would not be in a position to do. Secondly, let us suppose that the Judicial Appointments Commission said that in relation to circuit judge and recorder appointments it is going to award those appointments only to those people who have a 2:1 from Oxford or Cambridge. The Lord Chancellor can do something about that in the way in which the Lord Chief Justice cannot because the Lord Chancellor has a role in judicial appointments. Those two points are in aid of and additional to the point made by the noble and learned Lord, Lord Woolf, which I had not made but which is just as important; namely, that when there is a question mark about what a circuit judge has done, which there is very frequently, there needs to be someone in Parliament who has had some responsibility for appointing that judge and can say that the appointment was made in a sensible way. The idea of shuffling that off to the Lord Chief Justice is a mistake which will weaken the judiciary in our constitutional arrangements, without in any way improving the separation of powers. I hope that we will think about this issue again.
Lord McNally
I think that that is called extra time. So as to make it clear, I and I alone take responsibility for anything that I say from this Box. Just to give the noble and learned Lord, Lord Falconer, some idea of how deep the Lord Chancellor and the Lord Chief Justice go, having sat in on a number of meetings, I now have a full knowledge of the working of the Midlands Circuit 1970. I will take those points back.
Lord Falconer of Thoroton
I cannot resist the temptation to ask how many people who were on the Midland Circuit in 1970 are now being appointed judges. Their age, if they were on the circuit then, would now be 68.