Crime and Courts Bill [HL]
(11 years, 4 months ago)
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15:48 - Division on Amendment 79AA - Ayes: 177 / Noes: 218 - Amendment 79AA disagreed.
Lord Ahmad of Wimbledon
“Youth courts to have jurisdiction to grant gang-related injunctions
(1) Part 4 of the Policing and Crime Act 2009 (injunctions to prevent gang-related violence) is amended as follows.
(2) In section 49(1) (interpretation of Part 4) for the definition of “court” substitute—
““court” (except in Schedule 5A)—
(a) in the case of a respondent aged under 18, means a youth court, and(b) in any other case, means the High Court or the county court,but this is subject to any provision in rules of court that is or could be made under section 48(4);”.
(3) In section 43(7) (judge before whom person arrested on suspicion of breaching injunction under Part 4 is to be brought) for the words from “means” to the end substitute “means a judge of the court that granted the injunction, except that where—
(a) the respondent is aged 18 or over, but(b) the injunction was granted by a youth court,it means a judge of the county court.”(4) In section 48 (rules of court in relation to injunctions under Part 4) after subsection (3) insert—
“(4) In relation to a respondent attaining the age of 18 after the commencement of proceedings under this Part, rules of court may—
(a) provide for the transfer of the proceedings from a youth court to the High Court or the county court; (b) prescribe circumstances in which the proceedings may or must remain in a youth court.” (5) Schedule (Gang-related injunctions: further amendments) (which makes consequential and related amendments in the Policing and Crime Act 2009) has effect.
(6) Nothing in any provision of this section or of that Schedule affects proceedings in relation to applications made before the coming into force of that provision.”
Lord Ahmad of Wimbledon
My Lords, the amendments in this group will make a change to how the court system deals with gang injunction applications for those under 18 years of age. It will transfer the jurisdiction of gang injunction applications from the county court or High Court to the youth courts, sitting in their civil capacity.
As noble Lords may be aware, gang injunctions are a civil injunction introduced in the Policing and Crime Act 2009. They were subsequently extended to 14 to 17 year-olds in the Crime and Security Act 2010. Gang injunctions allow the police or local authority to apply for an injunction to prevent gang members engaging in, or to protect them from, gang-related violence. Injunctions can both prohibit and require certain activities or actions.
When gang injunctions were originally established, it was felt that the civil courts were best placed to hear the applications due to their expertise in handling civil injunctions, and this remains the case for adults. However, following discussions with practitioners, we have come to the conclusion that the youth courts are best placed to deal with gang injunctions for 14 to 17 year-olds. It is our belief that youth courts have the appropriate facilities and expertise to deal with young people and that they will thus be able to handle these cases more efficiently and effectively for all those involved.
To facilitate this jurisdictional transfer, Amendments 79 and 82 also make a change to what can be done by the rules of court governing the injunction process, as well as making a small amendment which applies to all injunctions. I beg to move.
Lord Beecham
My Lords, we certainly commend the Government for this very sensible amendment. It is clearly right that defendants under the age of 18 who are members of gangs should be dealt with by the juvenile court in the normal way. It is some reassurance that 18 is the limit, so that, for example, the activities of the Bullingdon Club, should they get out of hand, would not be dealt with in a juvenile court but properly in the adult court. This is an amendment that we support.
Lord Beecham
“Review into the Courts and Tribunal Service
The Lord Chancellor shall conduct a periodic review into the courts and tribunal service, including the public guardianship office, and the impact of section 17 and Schedules 9 to 11, including reports on its efficiency, cost, ease of access and user and practitioner satisfaction, and specifically the impact of court closures on court users and access to justice, and shall publish a report on the review to both Houses of Parliament.”
Lord Beecham
My Lords, this amendment echoes an amendment which I moved and which was debated in Committee requiring a review into the Courts and Tribunals Service. At that time, the amendment suggested that an annual review should take place. In supporting the thrust of the amendment, the noble and learned Baroness, Lady Butler-Sloss, queried whether an annual review was sensible, given the scope of the proposed review, and this amendment recognises that she indeed made a very good point. It now merely suggests a periodic review rather than an annual review into the Courts and Tribunals Service in its widest sense.
The noble Lord, Lord McNally, who replied to that debate, indicated that there was already a duty on the Lord Chancellor to ensure the efficiency of the courts service and to report annually thereon, and indeed that the Courts and Tribunals Service and the Office of the Public Guardian also issued annual reports. That of course is true, but that answer really ignores the fact that the whole system is undergoing seismic change as a result of legislation already passed and currently under discussion in this House and, shortly, in the other place.
In my view and that of the Opposition, what is required is a systematic and regular, although periodic rather than annual, review of the whole system, not a series of separate, unconnected reports dealing with different parts of the system. The amendment clearly envisages not merely a report on the efficiency of the system but matters that are coming to the fore in the light of the Government’s policy, as enacted and as are being enacted in relation to,
“ease of access and user and practitioner satisfaction, and specifically the impact of court closures on court users and access to justice”.
Those matters affect various parts of the system and, in my submission, it is essential, particularly in the light of changes to the legal aid system, to measure the impact, to review the possible difficulties, some of which are already beginning to emerge, and, if necessary, to correct them.
Various parts of the system have slightly different track records. In Committee, I mentioned concerns about the Office of the Public Guardianship and the Court of Protection. The noble Lord, Lord McNally, will recall that when we were discussing the matter—he and the Bill team were good enough to afford me some time to do that—he said that he had only recently been approached by someone else with a concern about the Court of Protection. In Committee, I referred to some publicity about the court: a patient at the court complained that it had cost him £50,000 due to poor investment control.
Perhaps I should renew my declaration of interest: I am now an unpaid consultant with my former firm of solicitors, where I was senior partner. I had there the conduct of a long-running case in the Court of Protection—long-running in the sense that the case arose out of clinical negligence and birth defects. The young patient is now 18 years of age. From time to time, I have had difficulty in obtaining responses from the Court of Protection; difficulty over the regularity and utility of supervision of the case in relation to financial and other matters; and a general feeling that many practitioners with wider experience of the Court of Protection felt that the move of staff to centres in Nottingham and Birmingham has not assisted the efficiency of the court.
Here, by definition, we are dealing with the problems of vulnerable children and adults and those who are appointed to look after them as deputies under the general supervision of the court. That is one important example where, in my view, there needs to be a periodic review linked to other issues. As I have already mentioned, there has been a change to the legal aid system. The noble and learned Baroness, Lady Butler-Sloss, referred in Committee to the problems that she envisaged in the family court with unrepresented litigants having to appear on their own behalf. There is widespread concern among the judiciary at all levels that that may well result in a clogging up of the court system as people struggle with presenting their own cases and having to be assisted by the court in the absence of proper advice.
In addition, a wide-ranging closure programme of magistrates’ courts in various parts of the country has led to difficulties with witnesses and parties attending a more distant court. It seems to me that it would be proper to measure the impact of that in terms of access to justice.
Another area of concern relates to some of the processes involved under the single court that now exists. We have county court buildings and we have a single county court. In principle, there is nothing wrong with that but, as I pointed out in Committee, the Government have not really followed the recommendations of Lord Justice Jackson, whose report, as we have noted on previous occasions, has been cherry picked in a variety of instances. In this case, the concern arises out of the problems of litigants and their legal representatives issuing proceedings. Lord Justice Jackson proposed that there should be regional court centres but, as he said clearly, 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”.
That does not happen, which has serious consequences.
Lord Pannick
My Lords, I support the amendment. One of the great defects in legal reform is the piecemeal nature of the exercise. As holes appear they are filled in. No doubt we do not need an autumn and spring statement on the legal state of the nation, but a periodic review would, in my opinion, be very helpful in focusing attention on the system as a whole. I very much hope that the Minister will accede to that proposal.
Baroness Butler-Sloss
My Lords, I also support the amendment. I remain very concerned about the impact of changes to legal aid on the family courts. It is absolutely necessary to have a review from time to time to see how the courts are coping with the endless litigants in person who will find themselves trying to cope at a very traumatic time of their lives when their relationships have broken down and there is no legal help at all. I very much support the amendment.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the noble Lord, Lord Beecham, gave a useful review of the remit and responsibilities of Her Majesty’s Courts and Tribunals Service. I note that both the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, voiced support for his idea of an annual review. I have to say that the Government are not persuaded of the case for that.
Baroness Butler-Sloss
I understood it not to be annual but to be periodic. Annual would be too frequent.
Lord McNally
Then, the Government are not persuaded of the case for a periodic review. That is in part because the Government continually review these areas. Part of the approach that we have taken is to try to avoid some of the piecemeal approaches that the noble Lord, Lord Pannick, criticised in his brief intervention.
We are bringing forward a comprehensive set of reforms in this area. We will see how they bed in and we will be constantly interested in any comments or any feedback on them. As I indicated in Committee, and in line with the commitments made in the published impact assessment, we will review the effectiveness of the single county court and single family court within five years of Royal Assent so that the new arrangements have time to become established and for the benefits to be realised.
As for any other review of the whole of Her Majesty’s Courts and Tribunals Service, the Lord Chancellor is already under a statutory duty to ensure that there is an efficient and effective system to support the carrying on of the business in the courts and to report annually to Parliament on the discharge of this duty under Section 1 of the Courts Act 2003. To this end the Lord Chancellor lays the annual report of Her Majesty’s Courts and Tribunals Service before Parliament.
Furthermore, Her Majesty’s Courts and Tribunals Service takes its obligations under the Government’s transparency agenda seriously. It routinely publishes performance data including providing clear and local information about how long it takes to decide cases in the civil, family and criminal courts. I was in talks recently with the senior judiciary overseeing the family courts and they made the point to me that this new transparency and the collecting of comparative data between courts was of considerable help in assessing which courts were not performing well and which courts were performing very well. This again is part of a general policy of check and balance in carrying forward these reforms. However, we do believe that imposing a further requirement for an additional annual review would be excessive, expensive and unnecessary.
The noble Lord, Lord Beecham, referred in particular to the Court of Protection and the Office of the Public Guardian—and indeed we had talks on this. The noble Lord raised his concerns in relation to the operation of the Court of Protection and the Office of the Public Guardian. He will recall that I wrote to him about this in July this year. Let me be clear. I recognise that there were concerns. The Court of Protection and the Office of the Public Guardian deal with some of the country’s most sensitive cases and it is important that they operate effectively and efficiently. When the Mental Capacity Act 2005 was implemented, both the Court of Protection and the Office of the Public Guardian faced a significant increase in the number of applications for court orders and applications to register enduring powers of attorney and lasting powers of attorney, with which the then IT system struggled to cope. In addition, the court was hampered by a shortage of judges. This resulted in a build-up of cases waiting for judicial decision.
However, things have improved considerably since then. The Court of Protection rules were changed to enable applications to be dealt with by authorised court officers in non-contentious cases. To date, this has resulted in fewer than 100 cases having a waiting time of 10 days or more, meaning that the majority of cases are resolved in a timely fashion. Furthermore, Clause 19 of and Schedule 13 to the Bill will increase flexibility in the deployment of judicial resources, thus increasing the number of judges who have the ability to sit in the court. The Court of Protection has also embarked on a programme of continuous improvement to remove waste and inefficiency from the administrative process.
In April last year, the Office of the Public Guardian commenced a major change programme as part of the Ministry of Justice’s wider Transforming Justice agenda. A key element of this is the development of a new, more robust and flexible IT system that will enable the agency consistently to meet the increasing demand on its services while also radically improving the quality of those services. The Public Guardian has initiated a fundamental review of the supervision regime to ensure that the Office of the Public Guardian is supervising court-appointed deputies in the most appropriate way. This review is considering how to focus efforts on supporting those deputies who may need more assistance and, where there are no concerns, enabling deputies to fulfil their duties with minimal intervention. Where issues are brought to the attention of the Office of the Public Guardian, the intention is to deal with these swiftly and thoroughly. Currently, 98% of complaints are resolved and responded to within 10 working days. Furthermore, the court is now issuing applications within five days instead of four weeks and it processes complete and uncontested cases from start to finish on average within 16 weeks instead of 21 weeks. The Court of Protection is also the only court in London to have achieved Beacon status.
In summary, I believe that the direction of travel is positive for both the Court of Protection and the Office of the Public Guardian. However, we remain committed to providing the best service possible and protecting the interests of the vulnerable.
The noble Lord, Lord Beecham, also mentioned the County Court Money Claims Service based at the Salford Business Centre. Again, I recognise the concerns raised. The introduction of the County Court Money Claims Centre seeks to enable the Courts and Tribunals Service to make the very best use of its administrative resources and provides court users with a more efficient and consistent service across England and Wales. Our ultimate goal is to move to electronic processing in all but a minority of cases. Centralising the money claims centre in Salford, which deals with paper based claims, is a stage in that evolution, one that is long overdue and which follows long-established private and public sector practice.
Equally, we believe that a single county court will provide a more efficient civil justice system that is fit for the 21st century and where litigants can achieve a more efficient, proportionate and speedy resolution to their disputes. By removing the district boundaries that surround each individual court, the single county court will address restrictions that limit the way customers engage with the courts. Access to justice will be increased as it enables the Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in the most cost-effective way.
The noble and learned Baroness, Lady Butler-Sloss, mentioned the single family court. We consider this court to be essential so that individuals can easily access the family court system when they need to. The new single family court will make it clearer and simpler for those who need to use the courts to resolve family matters. However, we are aware of the problems of self-represented parties and we are working urgently to take immediate action to assess self-represented parties affected by our legal aid changes, as well as developing a long-term strategy for the future. To date, this work has included taking forward the recommendations made by the Civil Justice Council, including making £350,000 of funding available to advice sector organisations to support self-represented litigants.
Her Majesty’s Courts and Tribunals Service also takes its responsibility to provide information very seriously and knows that courts operate more efficiently when customers are better informed. It is important that information provided to court users is accurate, up-to-date and straightforward and can guide court users down the correct path, thereby reducing the number of errors in the system.
I hope that, given my response to the review suggested by the noble Lord, Lord Beecham, and, in particular, my response to the comment of the noble Lord, Lord Pannick, the House will recognise that, yes, we are carrying out quite radical reforms but that they are joined up and we are taking action to improve and remedy defects where we have found them. As I said in my opening remarks, the idea that this process will not be kept under the very closest review and that Parliament will not have access to the outcomes of that review is mistaken. I therefore hope that the noble Lord will not press his amendment.
Lord Beecham
My Lords, I am grateful to the Minister for a very full reply. In particular, I am pleased to hear his assurances in respect of the most recent performance of the Court of Protection. We will have to see whether that trend continues in the future.
However, the Minister said that it is all part of a single approach—and that, of course, is the thrust basically of the amendment. The whole system should be reviewed periodically—I repeat, periodically, not annually, as the noble Lord twice said in his reply—so that we can see exactly the balance across the system of changes that have been made both under and apart from legislation. Court closures and magistrates’ court closures do not require legislation and other issues, such as the performance of the Court of Protection, are not affected by current legislation. An holistic approach is necessary so that Parliament, on behalf of those who seek access to justice, can determine the efficacy of the system, its openness and whether it is working properly in a way which is not designed—because it would not be an annual review—to be costly and elaborate.
Most other departments look at policies across the piece and it seems sensible for the Ministry of Justice to do so. Under those circumstances, I beg leave to test the opinion of the House.
Lord Beecham
“Requirement for consultation
The Secretary of State shall publish and consult on a strategy for the delivery of legal information, support and dispute resolution services to the public by Her Majesty’s Courts and Tribunals Service.”
Lord Beecham
My Lords, this amendment deals with the provision of information at the courts. In the previous debate the Minister referred to a grant of £350,000, which was to assist advice agencies in providing advice and support for litigants; modest as that amount certainly is, it is no doubt welcome. There is a significant problem in the courts, as outlined by Citizens Advice nationally, to which I referred in Committee. There are a significant number of courts where the reception staff are only now available for two hours a day and many in which they are not available at all. There is a significant potential problem with helping people who arrive at court not knowing what to do or in need of advice. In Committee, the Minister referred to the availability of online and telephone advice, and that is certainly the case, but, as we have said in this context and other contexts, not everybody finds online facilities or, indeed, the telephone all that familiar and useful.
In any event, in the earlier debate, the Minister said that he would be willing to talk with the voluntary sector to see whether and to what extent it could help and, as he put it, “short of committing money”, he was very willing to talk to it and hoped that he would be able to report back on Report—perhaps not with an amendment from me. He said that his good will was certainly there, and I have no doubt about that. I understand that there have been discussions. The Minister wrote to me about these matters but, at the moment, it does not seem that a conclusion has been reached. Will the Minister say whether he has met the voluntary sector and to what extent progress has been made in providing additional resources from that sector for this purpose? I recall that the noble and learned Lord, Lord Woolf, was very supportive of the original amendment in Committee, and from that most respected source I hope that the Minister would derive impetus for securing a resolution of a potential problem. It is now five months since we debated this in Committee, and I hope that the Minister has found it possible to advance discussions with the voluntary sector and will give an indication of the position now, and of where the Government hope to take this issue. I beg to move.
Lord McNally
My Lords, it is a given that we all have an interest in the smooth and efficient running of the courts. Clear, relevant and accessible information is critical for members of the public who will not always have the benefit of dedicated legal advice. I understand that the noble Lord, Lord Beecham, is attempting to ensure that there is support for the public in navigating the legal system and that where alternatives to resolving disputes through the courts are available, they are sufficiently visible.
While I support the notion behind the amendment, it is unnecessary to place an obligation on the Secretary of State for Justice to act as the custodian for this type of information. The Government’s digital strategy, published last month, set out how the Government will ensure that the GOV.UK website becomes the primary portal for information and guidance on all government services. Later this month, the Ministry of Justice will publish its own digital strategy which outlines how we will make our information available through GOV.UK.
As part of this, the Ministry of Justice and its agencies will ensure that appropriate information and support is provided to assist the public to navigate its systems. A new online signposting service, currently being developed in conjunction with key partners, including those from the not-for-profit sector, will be a primary access point for any client or organisation looking for assistance to resolve a problem.
The new service will lead clients through eligibility tests for legal aid and direct people to the appropriate sources of assistance, including contracted legal aid providers where relevant. Where clients are not eligible for legal aid, they will be signposted to alternative sources of assistance and information. This online service is scheduled to go live on 1 April 2013.
We recognise that not everyone who uses government services is online, and that not everyone will be able to use digital services independently. The Government have to ensure fair access to services for those who are entitled to them. People who are offline will be supported to access digital services; for example, through intermediaries. As set out in the Government’s digital strategy, how this “assisted digital” will work in practice will depend on the services delivered and be developed by individual departments.
I also understand that there is concern that there will be an increase in self-represented parties—those navigating the legal system without representation—particularly following implementation next April of the legal aid reforms. The longer-term sustainability of the advice sector is a matter that goes beyond the Ministry of Justice and work in this area has consequently been led by the Cabinet Office. Its recently published review on advice services acknowledged that the Government have a role to play in supporting the advice sector in adapting to the new funding realities, but it also makes clear that advice providers will need to take the initiative and change the way they work in order to ensure a long-term sustainability of supply.
I spoke last Friday at the launch event for the implementation of the Civil Justice Council’s recommendations regarding self-represented parties. I was greatly encouraged by the positive attitude of the not-for-profit sector in seeking ways to work in partnership with Government to support greater numbers of self-represented parties in the future. At that meeting there were representatives of the not-for-profit sector, the judiciary, my own department and various parts of the legal profession. I was very encouraged by the positive attitude taken as to how we make the new system work.
For our part, the Government are providing additional funding for these organisations. The Ministry of Justice has already funded a number of actions recommended by the Civil Justice Council and the new Advice Services Transition Fund of £65 million launched this October will be key to supporting advice providers to adapt and transform over the next two years. This funding will allow them to establish strong collaborative networks, more effective relationships with public agencies and a more cost-effective approach to providing their help to clients in need.
Given the existing commitment to create a single portal for advice and support from the Government, through GOV.UK and the support we are putting into advice services, an obligation to create a parallel service would be administratively burdensome and unnecessary. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, I find myself rather disappointed with the noble Lord’s reply. He said in June that he was very willing to talk to the sector about this particular issue, look at it and report back on Report. That does not seem to have happened. I have no doubt that the noble Lord spoke at this meeting in the sense that he has described. It is certainly true that some funds—
Lord McNally
If I have not made it clear, I have now had the opportunity, as I said in my letter to the noble Lord of 25 October, to meet the National Association of Citizens Advice Bureaux and representatives from the Advice Services Alliance and the Personal Support Unit. I also referred to the meeting I went to last Friday. I have had widespread discussions, money has gone into this sector and I am hopeful that CAB and others will move now from campaigning against LASPO, which is now an Act, and work constructively with us to see how we can work on this new settlement. Certainly, the idea that I have not reported back to the House is one that I deny.
Lord Beecham
I am grateful that the Minister has amplified on what he said in his initial reply. Of course, I accept that he has had those discussions, as he now says, although they did not, perhaps, quite take the course that he foreshadowed earlier in the year. However, I make the point that the advice sector is struggling at the moment in a very considerable way to deal with significant cuts. I referred to the experience in the north-east, but it is true over many parts of the country. I hope that it will be possible for the advice sector to respond in the way that the noble Lord has indicated that he wishes to see it go. But again, it will surely be necessary to keep that situation under review, because there will be a substantial increase in demand for that advice and it is far from clear that the sector on its own will be able to sustain it.
I do not propose to press the amendment. We will see how matters develop, and possibly interrogate the noble Lord in future as to what is happening on the ground. I beg leave to withdraw the amendment.
Lord McNally
Lord Beecham
Lord Beecham
My Lords, this amendment deals with the proposal in the Bill to delegate some decisions in the family court to legal advisers. The amendment seeks to define those duties in a way that would avoid legal advisers assuming the role of the court itself in making effectively legal decisions. It is quite a different matter if they were to make effectively administrative or case management decisions on matters of that kind. There is a concern, among the magistracy as well as more generally, that powers to adjudicate should be conferred on legal advisers.
The Minister wrote to me in some detail about this, and I am grateful for that letter, but I understand that discussions are going ahead and have not yet reached a conclusion about the precise form of regulations that are to come to both Houses. It is unfortunate that once again we are in a position of enacting legislation without a clear view of how it is to be implemented. Your Lordships may think that that is happening rather too regularly. Clearly, however, the Government are taking this matter seriously, and I look forward to seeing the draft regulations and ultimately the statutory instruments, which I understand will be subject to affirmative procedure. That being the case, I do not know whether the noble Lord is in a position to give an indication of the scope of the proposed delegation, without going into too much detail, because the regulations have not yet been drafted and consultations are still taking place. It might be helpful if he were able to give an indication that there will be some kind of limitation perhaps not precisely along the lines of the amendment but avoiding too much of a judicial role being assumed by legal assistants as opposed to judges—and, for the purposes of the family court, magistrates become judges.
It would be helpful to have that information, although if it is not available we will simply have to wait. But while waiting to hear what the Minister says, I make it clear that I do not propose to press the amendment. We will have a parliamentary opportunity at some point, although not one that would allow us to amend anything. Even so, in those circumstances I will not be pressing the amendment, but it would be interesting to hear whether the noble Lord can update us to any degree.
Baroness Hamwee
My Lords, could I ask my noble friend a question? He may not be able to answer at this point, but I am afraid that it has only just occurred to me—it is with regard to assistant legal advisers. I can well understand that a person should be able to act as a legal adviser only if that person is a justices’ clerk, but why should a justices’ clerk, as distinct from an assistant to a justice’s clerk, not be able to act as an assistant legal adviser? It may be that the requirements on any given day, or because of the complexity of the matter or whatever, would make it more convenient for a justices’ clerk to act as an assistant legal adviser. It may be that I do not understand enough about how the magistracy works with its clerks at the moment. However, the points raised by the noble Lord, Lord Beecham, caused me to look back to see who these individuals might be, because I share his concern about what they would be expected to do. It is an odd little restriction.
Lord McNally
My heart always sinks when my noble friend says that she does not understand some particular point of law, because I think then that the odds of my being able to understand it are infinitely less. On that particular point, I will have to write to her on the nuances between magistrates’ clerks and assistant magistrates’ clerks. However, may I say to the noble Lord, Lord Beecham, that I understand and, to a certain extent—as much as I am allowed to as a Minister—share his irritation that sometimes the legislation and the various Explanatory Notes and schedules do not come in the right order? As he says, however, there will be a chance for Parliament to look at these matters in due course. I also pray in aid the fact that, as my noble friend Lady Hamwee indicated, the aim of these changes is to try to get greater efficiency in justice into our courts. I will take up the invitation of the noble Lord, Lord Beecham, to update the House on where we are.
We are all keen to ensure the smooth running and efficient nature of our courts. Indeed, the single family court will ensure a more efficient, user-friendly system that enables cases to be processed quickly and with minimum distress to any children involved. In order to achieve this it is essential that our courts operate to maximum effectiveness. One of the ways that the Government will be able to encourage this is to allow legal advisers and assistant legal advisers to carry out procedural and administrative functions. By doing so they will ensure that the wheels of justice continue to turn, while freeing up judicial time to make the difficult decisions and determine rights.
The amendment proposed by the noble Lord, Lord Beecham, seeks to restrict the delegation of powers to legal advisers. The noble Lord has pointed to the report of the Joint Committee on Human Rights, which observed that the power awarded to legal advisers could be used quite widely. It also expressed concerns that there may be an appearance of lack of independence or impartiality if legal advisers are allowed to make decisions other than administrative decisions, such as case management. However, the provisions in the Bill for the delegation of powers to legal advisers largely mirror the provisions made in the Courts Act 2003—legislation passed by the previous Administration. I always find it a comfort when I am able to draw the attention of the Opposition to the fact that we are using one of their Acts to do something. I am sure that it is also a great comfort to the Opposition.
These amendments would mean that legal advisers and assistant legal advisers in the family court would be able to exercise fewer functions than they can potentially already exercise in magistrates’ courts. The Justices’ Clerks Rules 2005, made under the powers in the Courts Act 2003, already delegate a number of functions in family proceedings to justices’ clerks and assistant justices’ clerks. Only those who are currently justices’ clerks and assistants to justices’ clerks in the magistrates’ court will be able to be legal advisers and assistant legal advisers in the family court. I should also stress that justices’ clerks and their assistants are all legally trained, and so we are not proposing to delegate functions to those who are not legally trained. While I understand noble Lords’ reservations about the delegation of powers to legal advisers, I am not persuaded that the delegation of powers should be restricted as the amendment proposes. If legal advisers were restricted to working solely in administrative functions, as the noble Lord suggests, it would be a step backwards, removing powers that they already have, and would lead to increased delay and less efficient family court procedures. In particular, Amendment 81B seems to suggest that legal advisers should not be able to perform the function of giving legal advice to lay magistrates in the family court, even though this is a key part of their role now in the magistrates’ court.
Lord Beecham
If it would be helpful to the noble Lord, I have already indicated—I am sorry that this information does not seem to have reached him—that I was not proposing to speak to or move Amendments 81B or 81C.
Lord McNally
That is why I glanced up at the annunciator. I was hoping to get guidance. I had received that message, for which I thank the noble Lord.
This Bill provides the Lord Chancellor with the power to make rules enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser, and to delegate the functions that a legal adviser may perform to an assistant legal adviser. The Government wish to emphasise that the intention is that legal advisers and assistant legal advisers to the family court will not make decisions which are final or conclusive to the parties’ rights save for one proposed exception on which I will touch in a moment.
Ministry of Justice officials are still in discussion with the judiciary and with Her Majesty’s Courts and Tribunals Service over which powers should be delegated to legal advisers and assistant legal advisers. They are working closely with the Family Procedure Rule Committee to finalise details of the powers that will be contained in the secondary legislation which will be put before Parliament. I should remind the House that the first exercise of this rule-making power will be subject to the affirmative procedure, as the noble Lord said.
As a starting point, we are intending to replicate for the family court the existing functions which a justices’ clerk can perform in place of a single justice of the peace in family proceedings in the magistrates’ court. There are also a number of other functions which we envisage could be carried out by a legal adviser or assistant legal adviser in the new family court. Examples of the type of functions which we are considering delegating include allocation decisions, review hearings in private law applications and case management hearings in public law cases. We also envisage that legal advisers and assistant legal advisers to the family court will play an important role in the gatekeeping teams who will determine the allocation of cases to different levels of the judiciary in the new family court. Clearly, in the world of the family court there will be an extension of current powers as currently only functions which can be done by a single justice of the peace are to be delegated to legal advisers, whereas in the family court the legal adviser may be exercising functions of any level of judge. However, I note that such an extension is perhaps inevitable given the nature of the family court, and the Family Justice Review recommended that there should be flexibility for a legal adviser to conduct work to support judges across the family court.
I also want to reassure noble Lords that this rule-making power can be exercised only with the consent of the Lord Chief Justice and after consulting with the Family Procedure Rule Committee. The proposed exception to the rule that legal advisers will not make decisions which are final or conclusive to the parties’ rights was developed from the Government’s response to the Family Justice Review. The Government responded to that review, accepting the recommendation to allow uncontested divorce applications to be dealt with administratively. The proposal to delegate functions in uncontested divorce cases to legal advisers will ensure that the case is considered by someone who is legally qualified and trained.
I stress that I understand that this proposal in relation to uncontested divorces has the general support of the judiciary, subject to working through points of detail and ensuring that there is access to district judges to discuss any concerns. We are working with the judiciary to ensure that they are content with the system. The implementation of this proposal will be facilitated by further changes to primary legislation, which will be taken forward in the children and families Bill. There will therefore be further opportunities for the House to debate this issue.
We want legal advisers and assistant legal advisers to be able to carry out these functions in order to free up the judiciary to deal with more complex cases. This should achieve increased judicial continuity, reduce the time taken to deal with non-complex cases, and will, we hope, cause less distress for children involved.
I hope that that brings the House up to date with where we are. Some of it is work in progress, but the ultimate aim, as I have indicated to the noble Lord, Lord Beecham, my noble friend Lady Hamwee and the House is to get a more efficient system which uses judicial time more effectively. I am grateful for the noble Lord’s assurance that he will not divide the House on this matter.
Lord Beecham
I am grateful to the Minister for that very full reply, which is to a large extent reassuring. I hope that consultations with practitioners, particularly, for example, with the Family Law Practitioners’ Association, will be part of the exercise that he has just described. I look forward very much, as I am sure others do, to seeing the proposals in more detail in the manner that the Minister has described. In the circumstances, I beg leave to withdraw the amendment.
Lord McNally
“Gang-related injunctions: further amendments1 Part 4 of the Policing and Crime Act 2009 (injunctions to prevent gang-related violence) is amended as follows.
2 After section 46A insert—
“Appeals46B Appeals against decisions of youth courts
(1) An appeal lies to the Crown Court against a decision of a youth court made under this Part.
(2) On an appeal under this section the Crown Court may make—
(a) whatever orders are necessary to give effect to its determination of the appeal;(b) whatever incidental or consequential orders appear to it to be just.(3) An order of the Crown Court made on an appeal under this section (other than one directing that an application be re-heard by a youth court) is to be treated for the purposes of section 42 as an order of a youth court.”
3 In section 48 (rules of court in relation to injunctions under Part 4)—
(a) in subsection (2) (rules of court may provide for appeal without notice) omit “of the High Court or county court”, and(b) in subsection (3) (decisions to which subsection (2) applies) for “applies to a decision” substitute “applies—(a) to a decision under section 39(4)(a) that an application without notice be dismissed, and(b) to a decision”.4 In section 49(1) (interpretation of Part 4) after the definition of “court” insert—
““judge”, in relation to a youth court, means a person qualified to sit as a member of that court;”.5 In paragraph 1(2) of Schedule 5 (courts’ powers to remand person suspected of breaching injunction: meaning of “the court”)—
(a) for “High Court or” substitute “High Court,”,(b) before “and includes” insert “or a youth court”,(c) omit the “and” following paragraph (a), and(d) at the end of paragraph (b) insert “, and (c) in relation to a youth court, a judge of that court.”6 Schedule 5A (breach of injunction: powers of court in respect of under-18s) is amended as follows.
7 (1) Paragraph 1 (power to make supervision order or detention order) is amended as follows.
(2) In sub-paragraph (1) (pre-conditions for making of supervision order or detention order)—
(a) in paragraph (a) for “is” substitute “has been”,(b) before the “and” after paragraph (a) insert—“(aa) the person is still under the age of 18,”,(c) in paragraph (b) for “the court” substitute “a youth court”, and(d) in the words following paragraph (b) for “the court” substitute “that court”. (3) Omit sub-paragraph (3) (power to grant supervision order or detention order is in addition to any other power of the court in relation to breach of injunction).
(4) In sub-paragraph (9) (interpretation of Schedule 5A) omit the definition of “appropriate court”.
8 In paragraph 4(11) (appropriate court may amend activity requirement in supervision order) for “the appropriate” substitute “a youth”.
9 In paragraph 5(5) (appropriate court may amend curfew requirement in supervision order) for “the appropriate” substitute “a youth”.
10 In paragraph 6(7) (appropriate court may amend electronic monitoring requirement in supervision order) for “the appropriate” substitute “a youth”.
11 In paragraph 8 (amendment of operative period of supervision order)—
(a) in sub-paragraph (1) (appropriate court may amend operative period) for “The appropriate” substitute “A youth”, and(b) in sub-paragraph (2) (court may make other amendments when amending operative period) for “The court may,” substitute “A youth court may,”.12 In paragraph 9(1) (change of area of residence of person subject to supervision order) for “the appropriate” substitute “a youth”.
13 In paragraph 10(1) and (4) (application for revocation of supervision order to be made to appropriate court, and any further such application requires that court’s consent) for “the appropriate” substitute “a youth”.
14 In paragraph 12 (non-compliance with supervision order)—
(a) in sub-paragraph (2) (injunction applicant may apply to appropriate court on being informed of non-compliance) for “the appropriate” substitute “a youth”,(b) omit sub-paragraph (5) (no power to make further order if defaulter is aged 18 or over), and(c) omit sub-paragraph (6) (powers to revoke supervision order etc are in addition to any other powers of court in relation to breach of supervision order).15 In paragraph 15(1) and (4) (application for revocation of detention order to be made to appropriate court, and any further such application requires that court’s consent) for “the appropriate” substitute “a youth”.”
Lord Lloyd of Berwick
Lord Lloyd of Berwick
My Lords, this amendment relates to the Supreme Court. It would leave out part of Clause 18 which would make way for the appointment of part-time judges in the Supreme Court.
I will start with some things on which I hope we are all agreed. First, that all judicial appointments should always be decided on the basis of merit, solely on merit and on nothing but merit. The Constitution Committee was quite right to reaffirm that fundamental principle, so I need say no more about it.
Secondly, we are all in agreement that we need greater diversity at all levels; that is to say, we need more women judges and ethnic minority judges, whether men or women. Happily, things are a good deal better in this regard today than they were 15 years ago. I will come back to the figures a little later. However, we all agree that still more diversity is desirable.
Thirdly, we need greater flexibility in our working arrangements; again, at all levels. There is already more flexibility than many people imagine. The noble Baroness, Lady Jay, in Committee quoted the words of the Lord Chief Justice, which I shall quote also. 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 they can be at home ... I think those sorts of very small changes ... will help”.
Those sorts of small changes are already, in fact, happening.
Almost every noble Lord who spoke in Committee said that what we needed was more flexibility. Again, I agree. The point of disagreement is on whether, in order to get more women and ethnic minority judges in the Supreme Court and the Court of Appeal, we should, for the first time, be appointing part-time judges at those levels.
I am aware that the Constitution Committee recommended the appointment of part-time judges in the High Court and the Court of Appeal, although not—I think I am right in saying—in the Supreme Court. However, that view was not at all widely supported in our debate in Committee. The noble Baroness, Lady Kennedy of The Shaws, for example, said that she agreed with the noble Baroness, Lady Jay, and the noble Lord, Lord Pannick, that this is, as she put it, “about flexibility”. She regretted that the words “part-time” had been used in the Bill. She asked whether we should not be able to reformulate the wording of the Bill so that it is about flexibility. I wholeheartedly agree with the noble Baroness, Lady Kennedy, that that is, indeed, what we ought to be doing. The noble Baroness, Lady Falkner, who I am sorry not to see in her place today, made exactly the same point in Committee. She said:
“The meaning of part-time or flexible working is that people … say openly to their employer that they will be occasionally needing flexibility in terms of their personal arrangements and will be taking that flexibility from time to time … That is the basis on which this clause should be debated”.—[Official Report, 25/6/12; col. 94.]
I could not agree more.
The noble and learned Lord, Lord Falconer, who I am sorry not to see in his place—
Lord Lloyd of Berwick
He is here—hooray!—but not in his usual place. The noble and learned Lord also made the same point on that occasion. He said that he agreed with the noble Baroness, Lady Kennedy, when she said that this was about flexibility. He added:
“Part time, as a piece of language, may be a slightly misleading suggestion”.—[Official Report, 25/6/12; col. 99.]
I agree, except that I would not use the word “slightly”. The noble Lord, Lord McNally, was even more emphatic. At col. 102, he said that he agreed that “flexible” was the right word, not “part-time”. You could not put the purpose of my amendment more clearly than that.
However, the trouble for the Government is that that is not what the Bill states. Paragraph 2 of Schedule 12 says that instead of 12 full-time judges in the Supreme Court, there are to be an unspecified number of part-time judges. The Bill would therefore indeed provide for part-time judges, and that is what the Bill is about. Paragraph 2 of Schedule 12 is simply incapable of any other construction. If, as the noble Lord, Lord McNally, stressed, the right word is “flexible”, not “part-time”, I respectfully suggest that he agrees to the amendment and comes back at Third Reading with a new provision, reformulated, as the noble Baroness, Lady Kennedy, suggested, on the basis of flexibility.
Towards the end of his speech, the noble and learned Lord, Lord Falconer, said that the Bill would send out a message that flexible working was,
“available from the top to the bottom of our judicial system”.—[Official Report, 25/6/12; col. 101.]
He added:
“I cannot think of a better message”.
However, if the message is to be about flexibility, for goodness sake let us say so in clear and simple language—something that we do not have in paragraph 2 of Schedule 12.
There is apparently to be no limit to the number of part-time judges in the Supreme Court; nor is there any minimum for the number of full-time equivalent judges, as they are to be called. When I was a Law Lord, I never thought that I was a full-time equivalent Law Lord, but that is how I should have described myself. There is a maximum of 12 members in the Supreme Court but no minimum, so we could have four part-time judges in the Supreme Court, all of whom would be men if they were the best candidates, and eight full-time judges, making 10—but only 10—full-time equivalent judges, all of whom would be male. Is that really the sort of message that we should be sending out with this Bill?
I said that I would come back to the figures, and in particular the number of ethnic minority judges currently serving in the High Court and above. In 1998, only 10% of all judges were women, but by the end of 2011 the figure was 22%—more than double. In 1998, there were no women in the House of Lords, only one in the Court of Appeal and only nine in the High Court. By the end of 2011, there was one woman in the Supreme Court, five in the Court of Appeal and 18 in the High Court—again, more than double. In Committee, the noble Lord described these figures as being a mere trickle. I think that that is somewhat disparaging of the efforts of successive Lord Chancellors to get more women to the top—something they are succeeding in doing.
The noble Lord seems to want to speed things up by, as I understand it, making direct part-time appointments to the Supreme Court and the Court of Appeal. But where are these part-time women to come from? They will not come from the Court of Appeal or the High Court because there are no part-time women in those courts. What makes him think that, if we were to create new part-time vacancies in the Supreme Court, the best candidates would always be women and not men? In any event, would it be fair and just to promote part-time to the Supreme Court a woman who had not already served in the High Court and the Court of Appeal, once described as the only form of slavery not abolished in the 19th century?
The truth is that, if we open the Supreme Court and the Court of Appeal to part-time judges, it will not make the slightest difference for years to come, if ever. The best way to get more women at those levels—and we all agree that there should be more—is to go on as we have been and to increase flexibility as far as we can so that women are not put off applying. We should let the best candidates come to the top in the ordinary way, as they always have done. That is how it has worked in Canada, where four out of nine Supreme Court judges are women, and in the United States, where there are no part-time judges. The same thing will happen here only if we let it happen in the ordinary way. That is the message that we need to send out to the women who are currently on the verge of a judicial career, and that is why I am asking the Government and the Opposition to think again about this and to come back at Third Reading with something that better meets the needs. I beg to move.
Lord Woolf
My Lords, I am most grateful for the manner in which the noble and learned Lord, Lord Lloyd, has addressed the House. I strongly endorse every word that he has said. I support the amendment, to which I have added my name. I want to reaffirm what he said about the desire of the senior judiciary and successive Lord Chancellors to achieve greater diversity. As I see it, any objection to anything that would improve diversity has to be approached with caution. However, I say, without hesitation, that I do not believe that what is proposed at the moment with regard to part-time judges in the Court of Appeal and in the Supreme Court will achieve what we want. All it will do is give false expectations that cannot possibly be fulfilled.
The difficulty of accommodating part-time judges is very real but it can be done, and has been done, in the lower courts. However, the Court of Appeal and the Supreme Court are conducted in an entirely different way from what happens in the lower courts. What is more, their diet is different. Before I addressed the House today, I took care to speak to Sir Anthony May because for seven years, part of which time I was the Lord Chief Justice, he was the judge who had the heavy responsibility of determining how the courts would be staffed. His conclusion was that to try to adopt the proposal of part-time judges in appellate courts would create a nightmare—that is his word. Already it has been accepted that the High Court should be able to make progress, if possible, in that respect. I have reservations about whether that could be achieved in the High Court and Sir Anthony shared my reservations in that regard.
If that were to be implemented in respect of the Court of Appeal and the Supreme Court, would the position with regard to diversity be improved or would this be nothing more than a gesture, and one wholly without substance? If so, I do not believe that anyone who really wants to see diversity would welcome this provision. I know of no supreme court where part-time judges take part; likewise, I do not know of any court of appeal where part-time judges are appointed. In essence, their work is not appropriate for what could truly be called part-time judges.
However, while I entirely agree about the possibilities of flexibility, we are already extremely flexible in our approach to the use of our judges. It is only because of flexibility that, for example, we can enable judges to conduct inquiries more and more frequently, as has happened of late. If we were not flexible, that would not be possible. Likewise, in the current conditions of international co-operation between judiciaries of different countries, it is necessary for judges to meet in different countries and for there to be a constant programme of change and discussion between judiciaries of different jurisdictions. Diversity is a matter that they are concerned about but they, as far as I know, have no proposals of this nature.
I observe that later amendments propose to place a duty on certain senior judges to promote diversity. If it is thought that that duty is necessary, I am all in favour of it. I personally have doubts as to whether that duty will add to what they are already trying to do but I see no problem with it appearing in the statute. But I certainly urge the Minister to consider whether this suggestion is realistic.
Part-time working could even have an adverse effect on diversity. When I have discussed diversity with former colleagues, I have noticed that senior judges, who are finding the work very hard for the reasons indicated by the noble and learned Lord, Lord Lloyd, feel that it might be rather nice to have a couple of months off from time to time. In fact, it would be much better for judges who are finding the work overburdensome to retire rather than work part time. If they retire, they allow other judges to come forward and be promoted to courts such as the Court of Appeal and the Supreme Court. If they remain, that is not the case.
Once a judge retires, as long as he is under the age of 75, when you become statutorily senile, it is possible to be used from time to time—as much as the former judge wishes—when there is a need for an additional judge to help the administration of justice. Many judges sit in that way in the Court of Appeal and in the Supreme Court. That is just one more example of the flexibility that can be achieved without the need for legislation. I urge the Minister to take advantage of this opportunity to look again and, at least, decide not to keep in the statute a provision of this sort relating to part-time employment of judges in senior courts.
Lord Carswell
My Lords, Plato said:
“Wise men talk when they have something to say; fools because they have to say something”.
I hope that what I have to say will fall into the former category, but having heard what the very experienced and authoritative noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, said, I will make my point short, simple and direct in support of the amendment.
I had quite a long time—a good number of years—in appellate courts, and for seven years as Lord Chief Justice of Northern Ireland I was closely concerned with appointments. I am wholly and unequivocally in favour of promoting women to the posts that they should occupy. It follows that I am equally in favour of any flexible means of working that will effectively promote that objective. The intention behind the clause is admirable, but I am afraid that it simply will not work. The reason is simple. It was suggested by one or two noble Lords in Committee that most of the cases in the Supreme Court are of two days or fewer so there is really not a problem. I regret that it is not as simple as that.
The figures given to me by the Supreme Court are that in the first three years of its existence—which have just elapsed now—there were 168 cases heard. Of those, some 33 occupied more than two days. That is almost 20%. In itself that is not an insignificant proportion, but the really important thing is that virtually all of those longer cases were the most significant, important, demanding and difficult cases that the justices had to try. They are the ones which everybody should be available to take part in when required. If a judge is part-time and would not be available to take part in the longer and harder cases because of the length of time they occupy, it is damaging to collegiality—the team spirit of the court, if you like.
From experience, I can assure your Lordships that that is an important factor. If a judge cannot play, let us say, in the Premier League matches, there would be a feeling that he or she—and we are really talking of “she”—cannot pull their weight and that they are in some way second-string judges, though they may be very able people. They will feel that they are not really there at the party; the other judges may feel that too if they are carrying the burden. That is undermining to the spirit and effectiveness of the court and of the part-time judges.
I entirely agree that it is important to recognise and tackle this problem and to find ways of improving the promotion of women to the highest positions, which they should be occupying. I will not weary your Lordships with the ways that have been suggested. My noble and learned friend Lady Butler-Sloss spoke in Committee about this. There are ways, if they are properly, fairly and conscientiously followed by the appointing authorities. While the intention behind the present provision is excellent, the way adopted by the Bill of putting it forward with part-time judges is a mistake. It will not work and I support the amendment.
Baroness Butler-Sloss
My Lords, I am an early example of judicial diversity. I became at one time the senior woman judge in the country until the noble and learned Baroness, Lady Hale, became a member of the Supreme Court. It is inevitable, therefore, that I would support flexibility, but I do not support the term “part time”.
I combined being a judge at four different levels, including the Court of Appeal but not the Supreme Court, with trying to manage childcare. I did not seek time off, but I can see the advantages of having it from time to time. I certainly do not see the need to have it on a weekly basis. For the reasons that the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, have already set out, I question how far it is sensible to try to go along the path that the Government wish to pursue. There are real problems about it, certainly in relation to the senior judges. There will inevitably be an adverse impact on full-time judges if they have genuine part-time judges sitting in the Court of Appeal with them. It may be that the Supreme Court, where I do not have experience, does not sit very much more than two or three days, but it is not at all unusual to sit in the Court of Appeal for more than a week. Which judge who is genuinely part time—say, doing three days a week—would be able to take on a case of any length? It would mean that a full-time judge would have to take those cases. Inevitably, there would be a degree of resentment and, indeed, as the noble and learned Lord, Lord Carswell, said, a part-time judge might not feel part of the party.
I sat in the Court of Appeal on a number of long cases. If, when I was President of the Family Division, I had been asked whether some of my 19 judges could work part time or on flexible working for two or three days a week, with High Court judges being sent out on circuit sometimes for as long as six weeks at a time as Family High Court judges, it would have been, as Sir Anthony May said to the noble and learned Lord, Lord Woolf, a nightmare. I would not like the next President of the Family Division even to have to contemplate such a thing among the duties that he or she might have to take on. In suitable cases, there is no doubt that there can be flexibility. If people are in difficulties, they should be accommodated, and they are accommodated. Many years ago I recall a High Court judge whose wife had died unexpectedly and he was left with young children. Very considerable accommodation was made so that he was able to deal with his rather traumatic family life as well as continuing to sit as a High Court judge.
I would also say that the concept that the top court in the country is going to be part time is rather odd. What would be the message going out to the public—that the judges who matter most in the country are actually part time? I find that very odd indeed. Following on from what other noble Lords have said, I think that diversity can be achieved for women and for ethnic minority men and women who have not yet been referred to, although I hope that a number of them will come through to the Supreme Court—some of them certainly deserve to do so in due course. The flexibility that noble Lords have been talking about can and ought to be achieved without using the term “part time” as it sends out entirely the wrong message to everyone within the judiciary and those without.
I am particularly concerned that the Judicial Appointments Commission may feel obliged to appoint part-time judges because that is what it says in the legislation. If the commission appoints judges and then allows the Lord Chief Justice, the heads of other divisions or the President of the Supreme Court to be understanding when a particular judge wants to take some time off, that is infinitely preferable. I will not say any more about the fact that in any event this is not going to happen, probably for a generation.
The Earl of Listowel
My Lords, as treasurer of the All-Party Parliamentary Group for Children, I hope that I can say a brief word in support of the consensus across the House in favour of allowing parents flexibility. That is very heartening to me. At the early years conference hosted by the Daycare Trust earlier today, a practitioner complained that many children are now put into school at eight o’clock in the morning and are not collected until five or six in the evening. In my experience of caring for children, when some young people have to stay on past the end of the school day, they are very tired and unhappy because they have been left behind. It is encouraging to hear the whole House agree that, whatever the detail may be, we need to allow parents flexibility in their employment for the benefit of their children. I hope that the Government will continue to make more opportunities for flexible employment available to parents and increase parental leave.
Lord Pannick
My Lords, I am in the position which is often that of dissenting judges in the Court of Appeal who say that they have the misfortune to disagree with their judicial colleagues. Eminent though the previous speakers are, I cannot support these amendments. Your Lordships’ Constitution Committee, of which I am a member, reported on judicial appointments in March this year. We set out the scale of the problem. The problem is that about 16% of High Court judges and only 11% of Court of Appeal judges are women. Only one member of the Supreme Court’s 12 justices is female. We found that one of the reasons why there are so few women on the Bench at High Court level and above is the inflexibility of the working arrangements. We observed that there are increasing proportions of women at senior levels in all other professions and that this has occurred in recent years, in part, because of the increasing use of flexible working hours. We concluded that, for the number of women within the judiciary at the highest levels to increase significantly, there needs to be a firm commitment to flexible working and a recognition that many women will want to work part time for family care reasons.
The noble and learned Lord, Lord Lloyd of Berwick, was concerned to emphasise in his remarks at the beginning of this debate that he is in favour, of course, of flexible working: it is part-time working to which he objects. However, I say to the noble and learned Lord that a part-time worker is simply one who needs to work flexibly on a regular basis because of continuing family care commitments that arise every week of the year.
Lord Howard of Lympne
Can the noble Lord tell the House to what extent the commendable progress, to which he referred, that has taken place in other professions has been a result of a statutory provision requiring part-time appointment?
Lord Pannick
I am not suggesting that it has. The problem, as the noble Lord will recognise, is that the judiciary is way behind other professions in securing that women are represented in high proportions at the senior level. Of course, there is the utmost commitment of those in senior positions to do all they can. This is a fiendishly difficult problem but part-time working has been recognised as one of the central means by which women are able to combine family care commitments with progressing in a profession.
Lord Woolf
Perhaps my noble friend, who regularly appears in the Supreme Court and is familiar with many of its judges, can help us as to how many of them have family commitments.
Lord Pannick
I am sure it is true that all Supreme Court justices—particularly the 11 men, if it is those to whom the noble and learned Lord is referring—have family care commitments. However, the same point can be made about all senior men in all other professions. We all have family care commitments. The difficulty, as the noble and learned Lord knows, is that the family care commitments that address the needs of children and, perhaps more relevantly at the senior levels of the judiciary, aged parents, tend in our society to fall on women rather than men. That is a social fact.
I say to those who support the amendment that I entirely understand the points they make about practical difficulties but it is important not to exaggerate the problems. Judges regularly take time off from judging to do other things. The noble and learned Lord, Lord Woolf, mentioned that judges are regularly appointed to head inquiries. Supreme Court justices sometimes take four to six weeks off to sit on the Court of Final Appeal in Hong Kong. One could give many other examples. The idea that the system cannot—
Lord Lloyd of Berwick
Is that not the perfect example of what one means by flexible working as opposed to part-time working? They are not currently appointed part-time, but that is possible because of flexibility. That is what we should be aiming for.
Lord Pannick
My answer to the noble and learned Lord is that if the legal system is able to accommodate this type of problem—that judges regularly take time off to carry out other activities—then, like all other professions, it ought to be able to accommodate a female judge taking time off on a regular basis for domestic reasons. It remains to be seen whether allowing part-time judges to sit will result in more women judges at high levels. These powers are permissive, not obligatory, and no woman or man—although one anticipates that it is likely to be women who are so appointed—will be appointed unless it is practical.
My primary objection to these amendments is based on the factor to which the noble and learned Baroness, Lady Butler-Sloss, referred—which is the message that is sent out—although I arrive at a different conclusion. I suggest that it would be a very unfortunate message indeed for the law to confer an exemption for the senior judiciary from one of the most important means of enabling talented women to rise to senior positions in all professions. Watering down the part-time provisions in this Bill would wrongly suggest, wrongly, that the senior judiciary is not serious about doing all that it reasonably can to assist talented women to be appointed at senior levels. I hope that the noble and learned Lord will withdraw his amendment.
Baroness Warnock
My Lords, I had no intention whatever of entering this debate but it seems to me that there is quite a serious analogy here between the teaching profession at the top level and the legal profession. There is no doubt that in a school, particularly a boarding school, part-time members of the staff, although they are respected and have authority, are not regarded as the most senior, reliable and ready to sacrifice their time. They are not, in fact, of the same level of authority as the full-time members of staff. Nothing would be more destructive of the trust which the general public have in the senior judiciary than if the Supreme Court were divided among the “real” members and the “unreal” members—the part-timers who could not take on the really difficult and complicated cases.
I rely on this analogy strongly to support the amendment of the noble and learned Lord, Lord Lloyd, because I believe that, for one thing, it is quite uncertain that this provision would have the apparently desired effect of encouraging more women to come forward; and quite apart from that, it would have the disastrous consequence of dividing the Supreme Court between the top and the lower levels.
Baroness Neuberger
My Lords, not being a lawyer, I enter this debate with a certain amount of nervousness. However, I did chair the Advisory Panel on Judicial Diversity, and I support everything that my noble friend Lord Pannick said. I disagree with the amendment for one very important reason. I want to add to what my noble friend said one important fact which comes from the evidence that the panel took from individuals and various bodies when compiling our report.
You could not put a sheet of paper between the six members of the panel, one of whom was a Court of Appeal judge, in our clear belief that flexible working ought to be available to the most senior levels. We did not necessarily use the word “part-time” because we thought that there were other ways of doing it rather than the conventional two days on, three days off. When we spoke to women who were thinking about whether they should apply to the Judicial Appointments Commission to go to the High Court, we were told time and again that unless some form of flexible working was available, they would find it very difficult.
Lord Clinton-Davis
I speak as a mere solicitor, but I very much support everything that the former members of the Supreme Court and other members of the judiciary have said. It is absolutely essential that we should retain flexibility. I am usually on the same side as the noble Lord, Lord Pannick, but not on this occasion. Flexibility is a better word than the one that the Government are using.
Attracting part-time judges in the higher courts will not happen. If it does happen, it will not be to the credit of the higher courts. I support women in every area of work. Women have been an invaluable resource as far as the solicitors’ profession is concerned. Why should they not inhabit the Supreme Court and other higher courts in the land? It would do us a great favour if that were to happen.
Baroness Hamwee
My Lords, I very much agree with the noble Baroness, Lady Neuberger. I, too, feel a great sense of trepidation, also being a “mere” solicitor, non-practising.
It is very rare that I agree with those who have spoken on the other side of this argument but I want to respond to the point that has been made about the perception of women who wish to work flexibly. My own experience has been that those who work to a slightly different pattern almost invariably turn themselves inside-out to work harder than is humanly possible in order to make it quite clear that they are not taking advantage of the arrangements that have been made for them.
In this walk of life, as in any, if we deny that cohort of people the opportunity, we are not only denying them, we are denying the whole of society the opportunity to use their life experience as well as their professional experience.
Lord Beecham
My Lords, I join my two fellow members of the junior branch of the profession with equal trepidation. We have heard from four most distinguished noble and learned Lords, all of whom support the amendment.
Last night I was lobbied, perfectly properly, by the noble and learned Lord, Lord Lloyd, who drew my attention to the constant use of the word “flexibility” in the debate which took place some five months ago. It is true that the word was used but I am not sure that it was used in the sense that the noble and learned Lord perhaps implies, contrasting with the word “part-time”. When we discussed the matter I said that I was not quite sure what the difference meant in practice. I am still not sure what difference the noble and learned Lord would construct between the two.
The noble and learned Lord quoted two or three Members of your Lordships’ House as using the term “flexibility”. He mentioned, for example, my noble friend Lady Kennedy. She did use that word. At one point in the debate, at col. 92, he asked my noble friend a question. He said:
“Much of what she said dealt with flexibility. I think that everybody in the House is in favour of maximum flexibility … The real question is whether flexibility demands part-time judges. The view of some of us is that it does not”.
We have heard this today most eloquently from the noble and learned Lord and from other noble and learned Lords. My noble friend replied:
“If I may respond to the noble and learned Lord, it seems to me that it has to be one of the possibilities in the whole panoply open to those making appointments”.
That “it”, of course, is the question of part-time service. She continued:
“I do not imagine that it would happen very often but it might be that someone exceptional could be appointed who would say, ‘I will sit during these parts of the year and will be available to you then’”.
This was precisely the point made by the noble Baroness, Lady Neuberger. My noble friend went on:
“I do not believe that that would bring about resentment from other colleagues once they saw the quality of the work done by people of real ability”.—[Official Report, 25/6/12; col. 92.]
That is perhaps an answer to my noble friend Lord Clinton-Davis.
The noble and learned Lord also referred to my noble and learned friend Lord Falconer—who made but a fleeting appearance, unfortunately, in the Chamber this afternoon. I would have been delighted to give way to him for the purposes of this debate and, indeed, possibly to some others. My noble and learned friend Lord Falconer spoke in some detail and also rather deprecated the use of the term “part-time”. In the conclusion to his remarks, he said:
“So if we were to agree to a provision that allowed part-time or flexible working members of the Supreme Court … 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”.
My noble and learned friend treated “part-time” and “flexible” working as much the same thing. In the real world, surely that must be right. He concluded:
“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”.—[Official Report, 25/6/12; col. 101.]
My noble and learned friend said that the Opposition endorsed the proposals in the Bill, and we do again tonight.
Having never appeared before a tribunal higher than the county court I speak with some trepidation. However, I take some comfort from the experience of my noble and learned friend Lord Falconer, my noble friend Lady Kennedy and, in particular, the noble Lord, Lord Pannick, who has again eloquently made the case.
We are looking at flexible working that would necessarily involve—to avoid the use of the dreaded phrase “part-time”—less than full-time working. It seems to me that that is consistent with the objectives that have been outlined by noble and learned Lords who have supported the Government’s position. If it is of any comfort to the Minister, that will be the position should a Division be called: we would support the Government. We think that this is an imaginative forward step in the judicial system. We have every confidence that the people who are appointed to that very senior position will discharge it to the best of their obviously very considerable ability and with the utmost conscientiousness. I have no fears about that or about the capacity of the system to cope with what would inevitably be a relatively modest number of people occupying senior positions of that kind in the Court of Appeal and the Supreme Court.
On this occasion, the Minister and I are at one —which is perhaps, subsequently, a matter for some modest celebration.
Lord McNally
My Lords, it is perhaps a matter for a more than modest celebration. There was a time at the beginning of this debate when a former Law Lord, a former Lord Chief Justice, a former Lord Chief Justice of Northern Ireland and a former President of the Family Division had all spoken in quick succession to oppose this, and I thought, “My goodness, I’m in trouble here”. But then, over the hill like the 7th Cavalry, came the noble Lord, Lord Pannick, which is not a position he always occupies when viewed from these Benches.
This has been an interesting debate. Of course we have to listen carefully to the experience of those who have occupied senior judicial positions when we discuss a matter such as this. I shall make one or two points on the points made. The noble Baroness, Lady Warnock, called in evidence the teaching profession. I do not have experience of the teaching profession, so she can make her point, but over the past two and a half years I have had experience of the senior Civil Service, and I can compare it to when I had direct experience of the senior Civil Service in the mid-1970s. I have made the point before at this Dispatch Box: the thing that I notice most about the senior Civil Service now is its diversity, in both ethnicity and gender. Quite honestly, I do not know whether the senior adviser who is giving me advice is working flexibly or part time, and I do not really care. It is the quality of what they give. I do know, because they tell me, that because of the flexibility that has been introduced into the senior Civil Service many more women have been able to remain and to climb the ladder within the senior Civil Service. That has to be weighed in evidence in any comparison with other professions.
I also point out that, as the noble Lord, Lord Pannick, said, the powers we are seeking are permissive, not mandatory. That is an important point. I am very grateful to the noble Lord, Lord Beecham, for his intervention. He explained very carefully the interplay between flexible and part-time. I was also pleased by the intervention of the noble Baroness, Lady Neuberger. In weighing the serious evidence that was produced by the experienced former members of the judiciary, it is worth remembering that both the inquiry chaired by the noble Baroness, Lady Neuberger, and the Constitution Committee, of which the noble Lord, Lord Pannick, was a member, came down in favour of what we are trying to do.
As the noble Earl, Lord Listowel, indicated, there is general acceptance of the importance of part-time and flexible working to promote greater diversity in our modern society. The Government firmly believe that this is as true of the senior judiciary as it is of other areas of employment. These amendments would prevent us extending the benefits of flexible working to the Supreme Court and the Court of Appeal. The Government believe that the introduction of part-time working—
Lord Lloyd of Berwick
I hope that the noble Lord will be able to answer the key point. I agree with all that, but flexible working does not require part-time working.
Lord McNally
I thought that the noble Lord, Lord Beecham, had covered that point. We have gone through this in two fairly extensive debates. I say with a degree of confidence, given what the noble Lord, Lord Beecham, has just said to me, that if the noble and learned Lord insists on testing the opinion of the House again, he is, of course, entitled to. However, I understand the interchangeability of flexibility and part-time, which the noble Lord, Lord Beecham, very clearly explained.
Baroness Butler-Sloss
I thank the Minister and I shall be brief. Does the Minister see the distinction between a judge who will sit, say, three days a week and the situation that I vividly recall in the old Lord Chancellor’s department, with two absolutely admirable women who shared the week? That was great, they did it extremely well, but it would be very difficult for two judges to share the week, particularly if they had three months off to do inquiries. I did several inquiries and had to take months off. It is the three days a week that would be the difficulty, I suggest to the Minister, and that is what part-time really sounds like.
Lord McNally
No: it is not prescriptive and we would test and think very carefully about how it would be approached. Some of the points that have been made this afternoon will be taken into account in seeing how this will apply. I reject the idea that this is a gesture without substance, as the noble and learned Lord, Lord Woolf, suggested. The noble Lord, Lord Pannick, quoted the Constitution Committee’s findings which bear repeating,
“as the minimum change necessary. For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working and the taking of career breaks which we believe is currently lacking”.
Salaried part-time working has been in place in the courts below the High Court and tribunals for a number of years and it is important that we do not allow a known glass ceiling to remain in place preventing part-time judicial office holders from progressing further up the judicial career ladder. These provisions do not mandate that there must be an office holder who works part-time in either the Supreme Court or Court of Appeal; instead they remove any impediment that would prevent eligible candidates who work flexibly in the lower courts from applying for appointments to those courts.
There would be something problematic in a situation whereby the most meritorious candidate for the Court of Appeal or the Supreme Court was not able to accept an offer of appointment simply because we could not accommodate part-time working. In the 21st century that would be hugely embarrassing and, quite frankly, wholly at odds with the change in culture we are all seeking as the key driver towards a more diverse judiciary.
Some have argued that the work of these higher courts naturally precludes the ability of judges to work flexibly. It has been suggested that flexible working would disrupt the processes of the court and make life difficult for listing officers. The Lord Chancellor is not persuaded by this argument. The Lord Chief Justice was questioned on this very issue when he gave evidence before the Constitution Committee. He did not see any problems with organising sitting patterns in order to accommodate judges with caring responsibilities.
The Government’s consultation on judicial appointments and diversity focused on flexible working in the High Court and the Court of Appeal. The proposals received near unanimous support. However, a number of key stakeholders also highlighted in their responses that extending the principle of flexible working to the Supreme Court would demonstrate our commitment to improving diversity to those considering applying and we have therefore extended our proposals accordingly to include the Supreme Court.
Given the strong support for the provisions within the House and beyond I invite the noble and learned Lord, Lord Lloyd, to withdraw his amendment. However, if he is minded to test the opinion of the House, I urge noble Lords not to support the amendment.
Lord Mackay of Clashfern
For clarification, who would decide the nature of the appointment when a vacancy arises in, say, the Supreme Court? Would it be for the president of the Supreme Court to say, “I will take two part-time judges who will each sit half-time”, or would it be somebody else who would decide? It is a practical matter. I can see the arguments about it all and I see the general view in this House, but I would like to know how it would work in that sense; who would have the responsibility, ultimately, of saying what would be the pattern in a particular court. Is it the president of that court or somebody else?
Lord McNally
My Lords, as far as I understand, the process of appointment would be exactly as it is now. If, in the process of discussing a candidate for the Supreme Court, it became obvious that there was a candidate who would require flexibility in order to take up the appointment, that would be taken into account. But there is no question of the president of the Supreme Court, or anybody else, being ordered to take a part-time member because of this provision. It is there to give what it is hoped will be encouragement to those who have responsibilities outside their judicial responsibilities, so that they do not find that a bar to progress, but there is no special process of selection envisaged in this.
Lord Lloyd of Berwick
My Lords, I found the Minister’s reply very unsatisfactory because it seemed to me—I hope I am not saying what I should not—that much of his brief was written before he realised what point I was going to make.
Lord McNally
Half my remarks were made on notes that were there. The noble and learned Lord has now pressed for two full debates on whether “flexible” and “part-time” are interchangeable or whether one over-rides the other. I and the noble Lord, Lord Beecham, in an act of unity, having tried to explain—there is nothing in the brief on it—I continue to puzzle about why the noble and learned Lord cannot see the interchangeability of the two. I have also got his note, the billet-doux he left me last night, which further pressed the case, but a large number of people, whose opinions I express, do not find the confusion that he does about the two terms.
Lord Lloyd of Berwick
All I can say by way of reply is that nobody except the Minister and the noble Lord, Lord Beecham, regards flexible and part-time work as being interchangeable. They clearly are not. One is one thing and one is another. If the Bill were to take effect, one would have to calculate at some point how many part-time members, as it were, occupy the time of the Supreme Court, and how many full-time members. The thing is simply impractical on the basis of salaried part-time members who would be paid less than full-time members. Those are simply the financial impracticabilities, but there are also all the other impracticabilities that have been pointed out by other Members who have spoken. It would simply be, as has been said more than once, a nightmare to work out in practice. It would raise expectations which I suspect that we all know would never be fulfilled.
It would be so easy for the Minister, consequent on all the things that were said in Committee as well as by other speakers today, to substitute “flexibility” for “part-time” working. Then we would all agree. The suggestion made that these are two ways of looking at the same thing, in my respectful submission, simply makes no sense. But obviously I am not going to persuade the Minister, and I suspect that the Opposition will take the view that they have indicated that they will take. I regret it very much. However, for the reasons that I have tried to give, I seek the opinion of the House.
Lord Ahmad of Wimbledon
“Part 4A makes provision for the exercise of certain functions where the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division or the Chancellor of the High Court is incapable of exercising the functions or one of those offices is vacant,”
Lord Ahmad of Wimbledon
My Lords, this group of amendments makes a number of technical amendments to the judicial appointment and diversity provisions. I will touch only on those amendments which make a substantial change.
In Committee, the noble and learned Lord, Lord Falconer, highlighted that the drafting of the Bill would allow for the number of judicial appointments commissioners who are appointed by virtue of holding a judicial office to be equal to the number of other commissioners. Our intention was to retain the current position whereby the judicial members are in the minority on the commission, and Amendment 87 ensures that is the case. This will guard against any perception of judicial office holders appointing in their own image; it will not affect the current position, whereby commissioners appointed other than as a judicial member—for example, legal professional members—may also hold judicial office without counting towards the number of judicial members.
Amendment 89 transfers the power to appoint persons as magistrates from the Lord Chancellor to the Lord Chief Justice, although as with the current position the appointment will be made in the name of Her Majesty The Queen. This is entirely in line with other provisions in the Bill which transfer responsibility for approving Judicial Appointments Commission selections, and in some cases making appointments from the Lord Chancellor to the Lord Chief Justice for certain judicial offices below the level of the High Court. This proposal was not included in the Bill on introduction, as consultation with magistrates’ representatives was still taking place at that time.
Amendments 86 and 94 allow the regulations setting out the appointment process for Supreme Court and other judicial offices to set aside, for limited purposes, the usual arrangements for when the office of Lord Chief Justice is vacant or the post holder is incapacitated. Section 16 of the Constitutional Reform Act provides for the senior head of division to carry out the functions of the Lord Chief Justice in these circumstances. However, in relation to the functions of the Lord Chief Justice as a member of a selection commission and selection panel, or his functions in nominating other members of such commissions or panels, it may not always be appropriate for the senior head of division to assume such functions. For example if the appointment in question is to fill a vacancy in one of the offices of head of division, it may not be appropriate for a head of division to be given a role on the selection panel. The Constitutional Reform Act currently recognises this by allowing for a Supreme Court judge to deputise for the Lord Chief Justice in these circumstances. These amendments ensure that the regulations will be able to make similar provisions in future.
Amendment 95 requires the Lord Chancellor to secure the concurrence of the Lord Chief Justice before issuing any guidance to the Judicial Appointments Commission under Section 65 of the Constitutional Reform Act 2005. This reflects the increased partnership role that the Lord Chief Justice and Lord Chancellor have in the appointment process. It is also consistent with the approach that we have taken in relation to requiring the Lord Chief Justice’s agreement to our new regulations on the appointment process.
Amendments 82B and 103A provide a new power enabling the Lord Chief Justice, with the concurrence of the Lord Chancellor, to temporarily appoint a judge of the senior courts to carry out the statutory functions of a head of division when that head of division is either incapacitated or the office is vacant. The heads of division—namely, the Master of the Rolls, the president of the Queen’s Bench Division, the president of the Family Division and the Chancellor of the High Court—have a range of statutory powers and functions, but there is no corresponding power enabling the exercise of such functions when the relevant head of division is incapacitated or the office is vacant. This has proved problematic operationally, as it has meant that important decisions cannot be taken if the incumbent is unwell or the office is vacant and a new head of division has yet to be appointed.
These amendments will ensure that we can maintain business continuity and that courts can operate effectively in such circumstances. In addition to these amendments, a number of drafting and technical amendments have also been made. Noble Lords will also be aware that the Bill provides for various detailed elements of the appointment process to be removed from primary legislation and provides for new regulation-making powers in these areas. I should use this opportunity to draw noble Lords’ attention to the three sets of draft regulations that I have recently shared with Parliament. These have been produced in order to inform our debates. However, I would like to stress that these drafts are indicative and will be subject to change, but I hope that they are helpful in providing greater information to the House about our intentions in this area. I beg to move.
Lord Beecham
My Lords, I very much welcome the Government’s changes to their original plans, in particular in relation to the role of the Lord Chancellor, dealing with points that have been raised in Committee and by the Constitution Committee. I am glad that the Government have seen sense on those matters, if I may say so, and adopted the recommendations, and equally that they have responded to the points made by my noble and learned friend Lord Falconer in relation to the composition of the Judicial Appointments Commission. In all fairness to the Government, I think that it was a slip rather than a deliberate drafting decision that gave rise to that issue.
In relation to the judicial appointments magistrates, I am very happy that the Government have delegated this responsibility to the Lord Chief Justice, thereby removing any shadow of political or executive responsibility for that appointment. At a later point this evening, we will discuss further the issue of magistrates’ courts, although not in that context of the question of appointments. But to foreshadow some elements of that debate, there is a concern about the composition of the magistracy to which the later amendment refers, and I hope that the Lord Chief Justice will be in a position to respond to those concerns. The Opposition certainly welcome the delegation of that responsibility to him.
Equally, we support the minor amendments to which the Minister referred. On this occasion, having complained earlier about the lack of sight of draft regulations, I ought to thank and congratulate the Government on producing such documents, although it has to be noted that they are pretty anodyne, and perhaps the more difficult things are not as likely to appear in as timely a fashion. Nevertheless, it is a precedent that we welcome and very much hope to see followed, as we come on to perhaps rather more difficult matters. Having said that, we support these amendments and thank the Government for proposing them.
Lord Taylor of Holbeach
“( ) provide for section 16(2)(a) or (b) not to apply in relation to functions of the Lord Chief Justice—(i) as a member of a selection commission (including functions of chairing a selection commission), or(ii) in relation to the nomination or appointment of members of a selection commission;”
“Encouragement of diversity in appointments to the Supreme Court(1) Part 3 of the Constitutional Reform Act 2005 is amended as follows.
(2) After section 31, insert—
“31A Diversity
The Lord Chancellor and any selection commission convened under section 26 must, in performing their functions under sections 27 to 31, have regard to the need to encourage diversity in the range of persons available for selection for appointments.””
Lord Marks of Henley-on-Thames
My Lords, as everyone in this House recognises, our judges are widely respected nationally and internationally, for their fairness and impartiality, their integrity, honesty and incorruptibility, their intellectual rigour and their willingness to innovate in the development of our law. But we should not let our pride in the strengths of our judiciary beguile us into complacency about its weaknesses, because the reality is that for all its strengths, the judiciary is overwhelmingly too white, too male and too middle class to be representative of the society it serves. That leads to our judges being perceived as out of sympathy with contemporary Britain and overwhelmingly old-fashioned and out of touch, however far that may be from the truth in respect of individual judges.
It is nearly three years since the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger—whom I am delighted to see in her place today—reported in February 2010. We have just had the second report of the Judicial Diversity Taskforce, which records the practical steps taken since the publication of her report. There is no lack of expressed commitment to achieving more diversity, but there is still little sense of real progress being made. Both my noble friend the Minister and my right honourable and learned friend Ken Clarke, when Lord Chancellor, have publicly accepted as much in the recent past. As we heard in a previous debate, your Lordships’ Constitution Committee produced a report on this subject in March this year. The Committee pointed out then that:
“Only one in 20 judges is non-white and fewer than one in four is female”,
and expressed the strong view that,
“this disparity is undermining the public's confidence in the courts”.
We have made some progress. In 1998, only 10.3% of judges across the board were women and 1.6 % were black, Asian or from ethnic minorities. By 2011, those figures had risen to 22.3% and 5.1% respectively. But they are still a mile away from being representative of the nation as a whole. We still have only one woman Supreme Court judge out of 12; four women out of 37 judges in the Court of Appeal; and 17 out of 108 in the High Court. The figures for ethnic minority judges are proportionately worse: none in the Supreme Court, none in the Court of Appeal and only five on the High Court Bench. Even on the circuit Bench, the figures are just 16% and 2.5% respectively.
It is not just the appearance of being unrepresentative that distorts our judiciary. I firmly believe that the fact that there are so few women on the Bench has a substantial effect that distorts our substantive law. In Radmacher v Granatino, the case in which the Supreme Court held that ante-nuptial agreements should in general be respected, the noble and learned Baroness, Lady Hale—the only woman Supreme Court judge—largely dissented from her male colleagues when she said,
“In short, there is a gender dimension to the issue which some may think ill-suited to decision by a court consisting of eight men and one woman”.
There are often gender and racial issues to cases. If the development of the law continues to be left to stereotype white male judges, that will diminish the respect held not just for our judges, but also our law.
In international terms, our record on judicial diversity is appalling. Of all the countries considered in a report by the Council of Europe this year, only Azerbaijan and Armenia were less representative than England and Wales. There is effectively gender equality among the judiciary across the rest of Europe. In the earlier debate, the noble and learned Lord, Lord Lloyd of Berwick, mentioned the success in achieving gender equality in Canada and the United States.
All this is why I welcome the provision of paragraph 9 of Schedule 12 to the Bill, but also why the noble Baroness, Lady Hamwee, and I have put down amendments to enlarge its provisions and to enlarge the existing provision in the Constitutional Reform Act 2005 that encourages diversity. Under Section 64 of the 2005 Act as it stands, there is an obligation already on the Judicial Appointments Commission to promote diversity. However, that only applies to appointments under Part 4 of the Act, which does not apply to the selection of judges of the Supreme Court. Our Amendment 86A would introduce an exactly parallel provision into Part 3 of the Act, which governs the selection of judges, the president and deputy president of the Supreme Court. The Supreme Court is at the pinnacle of our system of justice. If we omit a requirement to encourage diversity there, we cast doubt on our commitment to achieve it throughout the system. The Government and the Bill recognise the need to encourage diversity. That must be reflected at the top.
The reform proposed in paragraph 9 of Schedule 12 to the Bill introduces the so-called “tipping point provision”—also called the tie-breaker provision—by which, where there are two candidates of equal merit, one may be preferred for the purpose of increasing diversity. Without that provision, the requirement that selection has to be made solely on merit prevents the commission from exercising its judgment in that way. However, paragraph 9 applies only to appointments under Part 4 of the 2005 Act; it does not apply to appointments to the Supreme Court. Our Amendment 86B would apply a similar tie-breaker provision to Supreme Court appointments as well.
It has been argued that such a provision is not necessary in relation to appointments to the Supreme Court, on the technical basis that under Section 27 of the 2005 Act such appointments are merely required to be “on merit”, rather than “solely on merit”, which is the requirement in Section 63 under Part 4. It is then said to follow that Section 159 of the Equality Act 2010 would permit recruitment to the Supreme Court on diversity grounds by using a tie-breaker principle. I am not sure that this distinction is a real one. But even if it is, there is nothing in Section 159 of the Equality Act that encourages, still less requires, tie-breaking. The combined effect of our Amendments 86A and 86B would do so. Tie-breaking does help. It should be explicitly encouraged on the face of the Bill throughout the system, and not merely, as the Government recognise, lower down than the Supreme Court.
Our final Amendment, 86C, would make it clear that the duty to encourage diversity is imposed on the Lord Chancellor in exercising his functions under Part 4 as well as on the Judicial Appointments Commission. Amendment 86D in this group, proposed by the noble Lords, Lord Pannick and Lord Powell, and the noble Baronesses, Lady Jay and Lady Prashar, would add the Lord Chief Justice to the list, because the Lord Chief Justice may be a consultee of the commission even if he is not a member of the selection panel, which is a committee of the commission. So Amendment 86D is more comprehensive, on reflection, and therefore to be preferred to our Amendment 86C. Either way, however, the important point is that we now urgently need to give impetus wherever we can to encouraging diversity, so that we can move from merely paying lip-service to the concept towards actually achieving it.
I do not know whether and to what extent my noble friend the Minister will make concessions to these amendments, but I emphasise that they are entirely consonant with the provisions already in the 2005 Act and in the Bill before the House tonight. I simply say this: you cannot expect the public or anyone else to think we are serious about encouraging diversity if we have a system that encourages it from the Court of Appeal down but does not encourage it in the Supreme Court, which is the highest court in the land.
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.
Baroness Neuberger
My Lords, as noble Lords will know, I chaired the Advisory Panel on Judicial Diversity, and I support all those who have already spoken. I love the analogy of the pregnant snail. It is now two and a half years since we reported, and with all the amazing good will that there has been—and there has been considerable good will, not least from the Minister, who has met with me regularly to see how we can take this further—the progress has been lamentably slow. It is therefore hugely important that the message is sent out widely that this is a statutory duty that applies not only to the Judicial Appointments Commission but much more widely. I particularly believe that we should also extend this to the Supreme Court.
Baroness Kennedy of The Shaws
My Lords, I also support this amendment. I sigh, because I feel as though I have been working on this issue of diversity in the legal profession and on the Bench all my professional life, which I now have to confess has covered 40 years. It is really important that we recognise how slow progress has been.
I had a conversation with one of those senior men of the law not very long ago about the fact that we only had one woman on the Supreme Court. I was reminded that when the Sex Discrimination Act came in it brought a great flurry of change into the legal profession. Up until that time, chambers used to say, “We don’t take women”. When I started at the Bar, people said that. Then they started saying, “Women? We’ve got one”. My concern is that that sort of attitude, that somehow we are doing fine if we have a woman here and there, is not good enough. During this conversation, I expressed my sadness that we had only one woman on our Supreme Court and mentioned the name of a very eminent and good woman—at which he said, “I know, but she’s so ambitious”, as though this was a truly terrible thing to be, and an attribute that could not be attached to any of the senior men of law who have gone into the Supreme Court.
There is a culture in the law that is resistant to change; it is just the nature of things. We have to create this kind of encouragement if we want to see things move at a better pace.
Lord Deben
My Lords, it would be a great mistake to do this if we did not have to. The problem is that we have to, because the present situation is not acceptable. No business could be run on this basis. You would have shareholders, even of the most reactionary kind, asking how on earth it was possible to run a major business in which there was one woman, on the basis that you had to have one. I very much appreciate the words that have just been said.
As I said on a previous occasion, if we did not need it, we would not have to do it but because we need it, we have to do it. I know that that sounds odd, but it seems the only answer to the Government’s argument so far, which I do not understand. I do not understand why it is sensible to do this at some points but not at others. That does not seem very sensible either. Surely it has always been best to do it at the top first, then all the way down. You do not do it at the bottom, and then hope it goes up. It is like having girls come into a boys’ school. It is a very odd system but when you want to open up a school you start at the bottom and the number of girls gradually goes up, until you have a mixed school at the top. I say that as the father of four children, two boys and two girls, none of whom went to mixed schools, but I know how they work and that is how you do it.
However, that does not mean that when you are dealing with the law you set a very good example by suggesting that it is not the same at every level. I am interested only in why that should be the case. I have listened to the Government’s arguments and no doubt if I have to listen again, I may be persuaded. Up to now, however, I am missing the logic. I would like to see a logical reason why this proposal should not be there, or why the other bits that are there should not be removed. That is the alternative: if we do not need this, why do we have the bits that we have?
I will say one last word about the addition to the Bill. The noble Baroness made a very good point about how long this is. There are many things in the law that could be removed to make room for this, and I can give a long list of them. For example, there is a part that makes it illegal for Roman Catholic churches to ring a bell. That is much longer than this bit; we could take that out and put this in quite happily. If, therefore, there is a question of overburdening, I can think of a series of overburdens that can be removed—so that argument does not work. I ask the Government to understand that by not doing this, a signal is being made. By doing it, a signal would also be made. I do not understand why they want to make the wrong signal.
Lord Mackay of Clashfern
My Lords, I had some experience of trying to push this agenda forward rather a long time ago but I wonder about, for example, creating a duty on the present Lord Chancellor to do this. What does this amount to? I have a feeling that the argument that has been presented suggests that you should make the duty incumbent on all the judiciary at all levels, so that they welcome diversity. That is my answer to the noble Baroness, Lady Kennedy of The Shaws. There is a limit to what the Lord Chancellor can do to change the culture now, with his present powers. There is also some question as to what the Lord Chief Justice can do, though he can be welcoming and so on. The logic of it is for the whole judiciary to be required to welcome diversity and all the benefits that it brings.
Lord Beecham
My Lords, I am fascinated, not to say a little distracted, by the zoological references to pregnant snails. I am not quite sure how one could tell, unless one was another snail. Perhaps I ought to address myself to the amendments rather than to this curious analogy.
I certainly support the thrust of the amendment of the noble Lord, Lord Pannick. Amendment 86DA, which is in my name, sets out a process; I should indicate to the noble Lord that perhaps the drafting is not quite as it should be. However, subsection (4) in my proposed new section 64A, which states:
“These duties shall continue for five years, but may be extended for five year terms by order”,
relates to its subsection (3) on the question of annual reports, rather than the principal objectives of that amendment, which are set out in subsections (1) and (2).
Several of your Lordships have pointed out the importance of making progress in this critical area. The noble and learned Lord, Lord Mackay of Clashfern, suggests that the duty should be spread wider, but it is difficult to envisage a duty on the holder of a judicial office to promote diversity in that capacity. It is surely a matter for those with greater responsibility at the top of the pyramid, both politically and judicially—the Lord Chancellor and the Lord Chief Justice, in addition to the commission—to have that duty. It is presumably easier to hold them to account in a less informal way than it would be to hold the whole judiciary to account.
I hope that the Government will accede to the arguments made by noble Lords and noble Baronesses. This is not a dramatic amendment, but it underpins the process that your Lordships have clearly adopted and wish to see implemented. It is a matter on which I should have thought the Government could concede without any kind of embarrassment because it carries out effectively the thrust of the policy on which the majority of the House are clearly agreed. I therefore hope that the Minister can agree to that or, at the very least, give it some further thought and come back at Third Reading. It would be better not to have to vote on this matter, given that there is a great deal of common ground. I am looking to the noble Lord to be as co- operative on this occasion as I was on a previous occasion.
Lord McNally
The noble Lord, Lord Beecham, can be very seductive at times, but let me try to respond to an extremely thought-provoking debate. I was interested in the mention by the noble Lord, Lord Deben, of girls going into boys’ schools and vice versa, because I have just had experience of this. My daughter has just moved from an all-girls’ school into the sixth form of an all-boys’ school. After a few weeks, I asked her, “How is it going?”. She said, “It’s wonderful, daddy, all the boys open the door for me”. That is an illustration of how a little change can bring behavioural changes, and that is probably what the noble Lord, Lord Deben, was suggesting, whereby perhaps a few girls in the all-boys’ school of the upper judiciary might produce similar changes in attitude.
I was very grateful for the intervention of the noble and learned Lord, Lord Mackay, because this debate turns on an issue that I explained in Committee. There is no doubt that both the Lord Chancellor and the Lord Chief Justice have a duty under the Equality Act to promote diversity. On the point made by the noble Lord, Lord Marks, that this does not apply to the Supreme Court and therefore implies some sort of ceiling in this, that is not true. We think that the tipping point in the Equality Act already applies to Supreme Court appointments and, therefore, that his amendment is not necessary.
I can put before noble Lords the standard brief that the Lord Chief Justice and the Lord Chancellor already have these duties enshrined, and that the Equality Act takes care of the problems that the noble Lord, Lord Marks, mentioned. However, that would not be the right response to a debate that has contained most of the people whom I count as allies in what I still think is a battle to get greater diversity into our judiciary. I was told earlier that I was being pejorative when I talked about this being a trickle-up. However, the figures quoted by a number of speakers illustrate that there is still a need for leadership, as the noble Baroness, Lady Jay, said. I applaud the leadership that her committee has given in this area, just as I applaud the leadership given by the noble Baronesses, Lady Prashar, Lady Neuberger and Lady Kennedy. However, we need that leadership elsewhere in the judiciary. I am almost tempted, as the noble and learned Lord, Lord Mackay, said, to make it applicable to all the judiciary.
I am willing to be seduced here by the noble Lord, Lord Beecham, as it would be an insult to the House and the opinions of people whom I respect immensely on this matter if I were simply to call a Division and bring in people who have not heard this debate to vote these amendments down. If noble Lords who have amendments in this group would withdraw or not move them, I will take this matter back to the Lord Chancellor. That will also give time for discussions with the Lord Chief Justice to see whether we can, in some way, meet the points that have been made.
I shall tell noble Lords where I am coming from. Recently, a very senior member of the judiciary pinned me in the corner and said, “If you do what you are trying to do to the judiciary, can you guarantee me that in 20 years we will still have a judiciary that is the envy of the world?”. I said, “Yes, but half of them will be women”. That may be overambitious but it is a lot better than a 50-year timescale or a “sometime, never” timescale. I therefore believe, as the noble Lord, Lord Deben, said, that sometimes gesture politics is important.
Tonight, I want to take this debate back to the Lord Chancellor and let him ponder on it. It may be that I will have to resist when we return to the issue on Third Reading, but I do not want to resist tonight because the quality of the debate and the persuasiveness of the argument deserve another look at this matter. In that spirit, I ask noble Lords to withdraw or not move their amendments.
Lord Marks of Henley-on-Thames
My Lords, everyone in this House knows that the commitment of the Minister to judicial diversity is very high, and I am grateful for his indication that he will consider this. I should say that I do not accept that the Equality Act deals with the position in the Supreme Court as satisfactorily as it has been suggested it might. The Bill should reflect uniformity all the way up the system. With the indication that my noble friend has given, however, I will of course withdraw the amendment and consider the matter with him between now and Third Reading.
Lord McNally
“Lay justices to be appointed by Lord Chief Justice36A (1) Section 10 of the Courts Act 2003 (justices of the peace who are not District Judges (Magistrates’ Courts)) is amended as follows.
(2) In subsection (1) (Lord Chancellor’s power of appointment) for “Lord Chancellor” substitute “Lord Chief Justice”.
(3) After that subsection insert—
“(1A) Subject to the following provisions of this section and to sections 11 to 15, a person appointed under subsection (1) is to hold and vacate office as a justice of the peace in accordance with the terms of the person’s appointment, which are to be such as the Lord Chancellor may determine.”
(4) After subsection (2) insert—
“(2ZA) The Lord Chief Justice must ensure that arrangements for the exercise, so far as affecting any local justice area, of the function under subsection (1) include arrangements for consulting persons appearing to the Lord Chief Justice to have special knowledge of matters relevant to the exercise of that function in relation to that area.”
(5) In subsection (2A) (Lord Chancellor to ensure local consultation takes place in relation to the exercise of functions under subsections (1) and (2)) for “subsections (1) and” substitute “subsection”.
(6) After subsection (6) insert—
“(6A) The Lord Chief Justice may nominate a senior judge (as defined in section 109(5) of the Constitutional Reform Act 2005) to exercise functions of the Lord Chief Justice under subsection (1).”
(7) In subsection (7) (delegation of Lord Chief Justice’s functions) after “subsection (2)” insert “, (2ZA)”.”
Lord Beecham
“36A The Lord Chancellor shall lay before Parliament within twelve months, and thereafter periodically, a report on the composition of the magistracy, including the numbers of lay magistrates and the numbers of full time district judges sitting in magistrates’ courts.”
Lord Beecham
My Lords, we have talked a great deal about judicial diversity in the upper courts, and there is a concern about both the composition of the Bench and its current functioning at the level of the magistracy. The concern is perhaps twofold.
First, I know that there is growing anxiety among lay magistrates about the increasing numbers of full-time district judges who are being appointed, thereby diminishing the role of lay magistrates. This matter has certainly been reported to me from places as far apart as Newcastle, Birmingham and Brighton, and it has also surfaced in a number of other areas. Notably, as I understand it, there is concern among lords-lieutenant —who obviously have close working relationships with the magistracy in their areas—at the apparent drift away from the hitherto prominent role of the lay magistracy in the operation of the courts. That is the reason, in particular, for the part of the amendment which seeks a report on the composition of the magistracy, including the number of lay magistrates and the number of full-time district judges. I asked a Written Question about this issue and the reply, slightly surprisingly, was that the Government simply did not know what the numbers were. This has obviously gone on for a very long time. However, if we are serious about looking at the function of the magistracy and its composition, it is surely incumbent on the Government to produce the data.
The problem of the composition of the Bench is perhaps also exacerbated not merely by the question of professional and lay magistrates or judges but by other issues, including diversity issues of gender, ethnicity and, I have to say, class in the local magistrates’ courts. The problem may be made more difficult by the closure of magistrates’ courts, to which I have referred. In addition to the difficulties that some people may have in getting sufficient time off work to serve as magistrates, it will now often be the case that they have to travel to a court which is no longer in the town where they might previously have sat or might seek to sit, and this will clearly compound the problems. It is already difficult enough for working people, whether they are well paid or not, to get time off to attend to these responsibilities, and I suspect that all these matters will continue the push towards having full-time appointments.
There is of course a place for full-time appointments and they have served for many years—formerly in the guise of stipendiary magistrates and now district judges—dealing particularly, but not exclusively, with criminal matters, yet the feeling now within the magistracy is that the role of the lay magistrate is being diminished. Magistrates’ clerks are effectively no longer answerable to their local court committee but answerable upwards, as it were, to the ministry. In many places, what was local justice is apparently coming to be seen as simply another arm of a national department—that is, the ministry—and, as with local policing, that is something that one would regret. One can apply Sir Robert Peel’s definition of policing by the people to local justice—by people from the community, knowing the locality and, to a degree, representing that locality. This is not just a recent matter—it has been going on for some time—and it is not by any means a matter to be laid entirely at the door of this Government. However, it seems to me a process which is to be regretted.
Therefore, this amendment seeks to establish a system in which there can at least be consideration of the facts. I hope that that will lead to the kind of debate and the kind of decisions that we are moving towards in respect of judicial diversity at the other level, but in this case I hope that it will also lead to a reconsideration of the role of lay magistrates. There is a danger—as I said, as reported by magistrates and lords-lieutenant—that the system may be dying on its feet because of this change to the professional local judiciary.
I am not anticipating that the Government will necessarily accept or support this. Again, it might be a matter that the noble Lord will be willing to take back and reconsider. It might be thought over-prescriptive but it will potentially open the door to the kind of developments to which I have referred.
I see that the noble Baroness, Lady Seccombe, is in the Chamber tonight. I think that in Committee she voiced similar concerns from her own very practical experience as a magistrate. My noble friend Lord Ponsonby is not here tonight but I know that he also shares these concerns. I think that it would fit very well with the laudable efforts that the Government are making in the upper echelons of the judiciary if this matter were given some consideration and the topics to which I have alluded could be addressed over time, basically with the same intention but with the added dimension of locality, as well as diversity, in relation to the amateur or part-time lay justice as well as the professional justice. I beg to move.
Baroness Seccombe
My Lords, as a former magistrate, I support all the sentiments of the noble Lord, Lord Beecham. He has expressed the great fears of the magistracy that it is gradually becoming more and more centralised and that the point of local justice is disappearing. The thing that I have a little trouble with is how that fits into this Bill at this time, and I should be very interested to hear what the Minister has to say on this.
Lord McNally
My Lords, I am grateful for the contributions from the noble Lord, Lord Beecham, and the noble Baroness, Lady Seccombe. Both have made important points about the concept of local justice and the massive boon that comes from a magistracy rooted in its locality and with a knowledge of the problems of an area and, indeed, of the people of an area. In previous debates I have given a run-out to the names Tommy Croft and Billy Quinn. They both worked in the local ICI works near to where I was born and they were both local magistrates. Everybody knew them and everyone, particularly the youth of the locality, dreaded appearing before them. That is the kind of benefit that we get from a magistracy which is rooted in its locality. But, alas, that was 50 years ago. Both my noble friend Lady Seccombe and the noble Lord, Lord Beecham, are right to say that, in our drive for various efficiencies and for uniform high quality, we must ensure that we do not squeeze out the benefit that we get from a lay magistracy. The magistracy performs a vital role in our justice system and the Government are highly supportive of both lay magistrates and full-time district judges sitting in magistrates’ courts.
In our White Paper, Swift and Sure Justice, we restated our view that the lay magistracy is one of our most important assets. The White Paper also sets out proposals to give magistrates new roles and responsibilities. We are currently working through the responses that we received and we will confirm our plans in due course.
I fully understand the request by the noble Lord, Lord Beecham, for information on the composition of this crucial element of our judicial system. I am delighted to confirm that official data from the Judicial Office are already publicly available on the judiciary website. That includes not only information on the number of lay magistrates in each of the 47 advisory committee areas and the name and number of district judges sitting in magistrates’ courts but also detailed information on gender, age, ethnicity and disability. Those data are published annually on 1 April. The number of lay magistrates in post as of 1 April 2012 was 25,155; the number of district judges sitting in magistrates’ courts was 141, with 134 deputy district judges. Perhaps I can illustrate the level of detail to which this information goes: 51.3% of lay magistrates and 29.1% of district judges were female; 53.9% of lay magistrates and 35.4% of district judges were 60 or over; 4.5% of lay magistrates identified themselves as having a disability; and 8.1% of lay magistrates and 2.8% of district judges were from black and minority ethnic groups. There is even more detail on the website, should noble Lords wish to visit the relevant links.
Given the extensive amount of official information on the composition of the magistracy already in the public domain, I suggest that a requirement for the Lord Chancellor to lay a periodic report before Parliament is unnecessary. On that basis, I ask the noble Lord to withdraw his amendment.
Lord Beecham
I am very much obliged to the Minister for that information. I am a little surprised that it did not find its way into the Answer to my parliamentary Question some time ago. It is reassuring that that information is available. I shall withdraw the amendment, but I would like to ask whether there is any indication of, for example, employment categories or, frankly, class, although that may be asking too much; it may be difficult to get. I take it that the Minister would wish to promote diversity and look into the concerns that the noble Baroness and I both raised about the role of the lay magistrate in general. I gather that he is sympathetic to that. Therefore, without seeking to incorporate this into the Bill, perhaps he could undertake to have a look at that departmentally and perhaps in conjunction with, say, the Magistrates’ Association and the Magistrates’ Clerks Association, if that still exists, as a matter of government policy rather than legislation. In the circumstances, I beg leave to withdraw the amendment.
Lord McNally
“Justice of the Peace appointed under section 10(1) of the Courts Act 2003 (justices of the peace other than District Judges (Magistrates’ Courts))”
“(1) In section 8 (power of Senior President of Tribunals to delegate) after subsection (1) insert—
“(1A) A function under paragraph 1(1) or 2(1) of Schedule 2 may be delegated under subsection (1) only to a Chamber President of a chamber of the Upper Tribunal.”
(2) ”
Lord McNally
Lord McNally
My Lords, I shall come clean with the House. Earlier, overtaken by the excitement of getting government amendments through, my noble friend Lord Taylor nodded through government Amendment 83, to which I was supposed to speak. It is grouped with Amendment 93, which gives me the opportunity to catch up with it. This allows me to make a concession which was argued with some passion by the noble and learned Lord, Lord Falconer, in Committee, about the provisions enabling the Lord Chancellor to sit on the selection panel for the Lord Chief Justice and the President of the Supreme Court’; sadly, the noble and learned Lord was here for only a fleeting moment.
In Committee, these provisions were a matter of considerable concern to many of your Lordships. Although I thought that I defended the position with considerable persuasiveness, the Lord Chancellor decided, the brief says here, that we have carefully considered the arguments that were put forward at that stage as well as those set out in the reports of the Constitution Committee and the Joint Committee on Human Rights. The amendments respond to those concerns by removing from the Bill those provisions relating to the Lord Chancellor’s ability to sit on the selection panel for the Lord Chief Justice and the President of the Supreme Court. Thanks to the noble Lord, Lord Taylor, we have already agreed Amendments 83, 84 and 85 in this group and I am now using this opportunity to move Amendment 93 and to speak to Amendments 97 and 98. I hope that the House will find this acceptable.
In view of the importance of the roles of the Lord Chief Justice and the President of the UK Supreme Court to the administration of justice, we remain of the view that the Lord Chancellor should have a role in these senior appointments. Accordingly, while we will revert to the existing arrangements in that the Lord Chancellor will not sit on the selection panel but will decide whether to accept the selection, reject it or ask the panel to reconsider its selection, we intend to augment these to ensure that the Lord Chancellor is engaged earlier in the selection process. Taking on board the comments raised in Committee, we now propose that the selection panel consults the Lord Chancellor during the selection process. This already occurs in relation to Supreme Court appointments but will be new in relation to the appointment of a Lord Chief Justice.
We have shared the draft indicative regulations with noble Lords relating to the appointment process and these provide for this consultation by the panel in relation to all appointments to the Supreme Court and to certain senior judges in England and Wales, such as the Lord Chief Justice and Lords Justice of Appeal. In addition to this, we will, as I have said, restore the current position whereby the Lord Chancellor will receive the selection panel’s report and, in the light of that, decide whether to accept or reject the panel’s recommendations, or alternatively ask the panel to reconsider its recommendation. I hope that noble Lords will agree that this approach now establishes an appropriate mechanism for the Lord Chancellor’s views to be heard, while safeguarding the impartiality of the selection process. I beg to move.
Lord Pannick
I thank the Minister for reverting to the important Amendments 83, 84 and 85. As the noble Lord mentioned, your Lordships’ Constitution Committee was critical of the proposal in the Bill for the Lord Chancellor to sit as a member of the appointments committee appointing the Lord Chief Justice and the President of the Supreme Court. The Minister's advocacy in Committee was outstanding but, as he will know, sometimes the best advocacy is in support of a completely hopeless cause. I genuinely thank the Minister and the Lord Chancellor for listening on this important subject. It is a matter of constitutional concern. I thank them for bringing forward amendments to the Bill in accordance with the recommendations of your Lordships’ Constitution Committee.
Lord Mackay of Clashfern
I wonder whether it is worth mentioning that, of course, the Supreme Court is of interest in jurisdictions other than those in which the Lord Chancellor has authority now, and there may be a question about the balance of that. Admittedly, other jurisdictions have representation on the selection committee, but it may be worth while keeping in place that balance.
Lord Beecham
My Lords, I endorse everything that the noble Lord, Lord Pannick, said, as a surrogate for my noble and learned friend Lord Falconer. Had he been here I am sure that he would have enthusiastically congratulated the Government on their change of heart. Again, I rather tiresomely congratulate the Minister on accepting the wisdom of the House as previously expressed. We welcome this change and reversion to what is essentially the current situation. We look forward to more of the same as we go through the Bill.
Lord McNally
“( ) provide for section 16(2)(a) or (b) not to apply in relation to functions of the Lord Chief Justice—(i) as a member of such a panel (including functions of chairing such a panel), or(ii) in relation to the nomination or appointment of members of such a panel;”
“51A In section 66(1)(a) (Lord Chancellor to consult Lord Chief Justice before issuing guidance about selection procedures) for “consult” substitute “obtain the agreement of”.”
“(1BA) The members of the panel may not include the current holder of the office for which a selection is to be made.”
“(5) Omit subsection (5) (if practicable, panel to consult current holder of office).”
“(1C) The members of the panel may not include the Senior President of Tribunals.””
“(1) Section 97”
(2) In subsection (1) (list of provisions requiring consultation)—
(a) omit paragraphs (b), (c) and (e), and(b) in paragraph (d) for “95(2)(a), (b)” substitute “95(2)(b)”.(3) In subsection (4) (modification where requirement is to obtain concurrence rather than to consult) after “section 94A(1)” insert “or 95(2)(a)”.”
“Part 4AAppointment of judge to exercise functions of a head of division in case of incapacity or a vacancy etc76A Where a Head of Division is incapable of exercising relevant functions, or the office of a Head of Division is vacant, the Lord Chief Justice may, with the concurrence of the Lord Chancellor, appoint a judge of the Senior Courts to exercise relevant functions of the Head of Division.
76B An appointment under paragraph 76A—
(a) must be in writing,(b) must specify the functions that may be exercised by the appointed judge, and(c) must set out the duration of the appointment.76C In paragraph 76A—
“Head of Division” means—(a) the Master of the Rolls,(b) the President of the Queen’s Bench Division,(c) the President of the Family Division, or(d) the Chancellor of the High Court;“the Lord Chief Justice” means the Lord Chief Justice of England and Wales;“the Senior Courts” means the Senior Courts of England and Wales.76D In this Part “relevant functions” means functions under any of the following—
section 5 of the Public Notaries Act 1843 (functions of Chancellor of the High Court in relation to refusal of master of the faculties to grant a faculty to practise as a public notary);section 8(5) of the Public Records Act 1958 (President of the Family Division to be consulted in relation to transfer of certain records);section 5(2) or (3) of the Senior Courts Act 1981 (concurrence of Heads of Division with transfer of judges between Divisions of High Court etc);section 7(1) of the Senior Courts Act 1981 (power of Lord Chancellor, Lord Chief Justice and Heads of Division, acting collectively, to recommend alteration of Divisions of High Court etc);section 11(9) of the Senior Courts Act 1981 (concurrence of particular Heads of Division etc with Lord Chancellor’s declaration of a vacancy in the office of a judge of the Senior Courts who is permanently incapacitated and unable to resign);section 54 of the Senior Courts Act 1981 (functions of Master of the Rolls in relation to composition of courts of civil division of Court of Appeal);section 57 of the Senior Courts Act 1981 (determination by Master of the Rolls with concurrence of Lord Chancellor of sittings of civil division of Court of Appeal during vacation);section 61(5) of the Senior Courts Act 1981 (concurrence of Heads of Division concerned with assignment of business of one Division of High Court to another Division of High Court);section 63(3) of the Senior Courts Act 1981 (concurrence of Head of Division concerned with direction that business is to cease to be assigned to specially nominated judge of High Court); section 71(4)(a) of the Senior Courts Act 1981 (determination by Heads of Division with concurrence of Lord Chancellor of sittings of Divisions of High Court during vacation);section 109(2) or 110 of the Senior Courts Act 1981 (President of the Family Division may make certain arrangements in relation to documents relating to probate etc);section 111 of the Senior Courts Act 1981 (President of the Family Division may give directions as to form and content of records of grants made in the Principal Registry or a district probate registry);section 126 of the Senior Courts Act 1981 (President of the Family Division may, with concurrence of Lord Chancellor, make regulations imposing conditions on deposit of wills);section 133 of the Senior Courts Act 1981 (functions of Master of the Rolls in relation to enrolment and engrossment of instruments);section 25(3)(a) of the Administration of Justice Act 1982 (President of the Family Division may, with concurrence of Lord Chancellor, make regulations as to deposit and registration of wills);section 257(3) of the Inheritance Tax Act 1984 (President of the Family Division may make certain arrangements in relation to delivery of accounts for the purposes of that Act);section 37 of the Matrimonial and Family Proceedings Act 1984 (President of the Family Division may, with concurrence of Lord Chancellor, give directions with respect to distribution and transfer between High Court and family court of family business and family proceedings);section 1(9) of the Courts and Legal Services Act 1990 (Heads of Division etc to be consulted in relation to changes to allocation of business of High Court and county court);section 58A(5)(a), 58AA(6)(a) or 58B(7)(a) of the Courts and Legal Services Act 1990 (Heads of Division etc to be consulted in relation to certain matters relating to agreements for funding of legal services);section 56(4) of the Access to Justice Act 1999 (Heads of Division etc to be consulted in relation to changes to destination of appeals);section 57 of the Access to Justice Act 1999 (Master of the Rolls or President of the Family Division etc may assign appeals to the Court of Appeal);section 2(7) of the Courts Act 2003 (Heads of Division etc to be consulted in relation to authorisation of contracting-out of administrative work of courts);section 64(4) of the Courts Act 2003 (Heads of Division to be consulted in relation to change of judicial title);section 66(4)(b) of the Courts Act 2003 (President of the Family Division may nominate Circuit judges etc to sit as members of family proceedings courts);section 77(3) of the Courts Act 2003 (President of the Family Division etc to be consulted in relation to certain appointments to Family Procedure Rule Committee);section 78(2) of the Courts Act 2003 (President of the Family Division to be consulted in relation to certain changes to Family Procedure Rule Committee);section 92(5) of the Courts Act 2003 (Heads of Division etc to be consulted in relation to fees of Senior Courts, family court, county court and magistrates’ courts);paragraph 12(4) of Schedule 7 to the Courts Act 2003 (Heads of Division etc to be consulted in relation to regulations about enforcement officers); section 52(4) of the Constitutional Reform Act 2005 (Heads of Division etc to be consulted in relation to Supreme Court fees);section 183(7)(b) of the Legal Services Act 2007 (consent of Master of the Rolls etc in relation to fees for administration of an oath or taking of an affidavit);paragraph 1(10) of Schedule 3 to the Legal Services Act 2007 (concurrence of President of the Family Division etc with meaning of “reserved family proceedings” prescribed for the purposes of that paragraph).76E The Lord Chancellor may by order amend the list in paragraph 76D so as to—
(a) add an entry,(b) remove an entry, or(c) vary an entry.76F After section 10(6) of the Senior Courts Act 1981 (where there is a vacancy in one or more of the offices of the Heads of Division, a newly-appointed Lord Chief Justice is to take the required oaths in the presence of the holders of such of the offices as are not vacant) insert—
“(6A) Where the holder of an office mentioned in subsection (5) is incapable of exercising the functions of the office, the office is to be treated as vacant for the purposes of subsection (6).””
Lord McNally
(a) for “judicial office holder (as defined in section 109(4)” substitute “senior judge (as defined in section 109(5)”, and(b) ”
“10A (1) In paragraph 6(3)(a) of each of Schedules 2 and 3 (requests to certain judges to act as judges of First-tier Tribunal or Upper Tribunal may be made only with the concurrence of the Lord Chief Justice) omit the “or” at the end of sub-paragraph (iv) and, after sub-paragraph (v), insert “,
(vi) the Master of the Rolls,(vii) the President of the Queen’s Bench Division of the High Court of England and Wales,(viii) the President of the Family Division of that court,(ix) the Chancellor of that court,(x) a deputy judge of that court, or(xi) the Judge Advocate General;”.(2) In paragraph 6 of Schedule 2 (judges by request of First-tier Tribunal) after sub-paragraph (3) insert—
“(3A) A request made under sub-paragraph (2) to a person who is a judge of the First-tier Tribunal by virtue of section 4(1)(ca) may be made only with the concurrence of the Lord Chief Justice of England and Wales.””
Lord Ahmad of Wimbledon
“(1A) In section 20 of the Tribunals, Courts and Enforcement Act 2007 (transfer from the Court of Session to the Upper Tribunal)—
(a) in subsection (1)— (i) in paragraph (a), for “, 2 and 4 are met” substitute “and 2 are met, and”,(ii) omit paragraph (aa) (including the “and” following it), and(iii) in paragraph (b), for “, 3 and 4” substitute “and 3”, and(b) omit subsections (5) and (5A).(1B) In section 25A of the Judicature (Northern Ireland) Act 1978 (transfer from the High Court to the Upper Tribunal)—
(a) in subsection (2), for “, 3 and 4” substitute “and 3”,(b) omit subsection (2A),(c) in subsection (3), for “, 2 and 4” substitute “and 2”, and(d) omit subsections (7) and (8).”
Lord Ahmad of Wimbledon
My Lords, Amendments 106 and 107 will remove current restrictions to enable applications for judicial reviews in immigration, asylum and nationality cases, made either to the Court of Session in Scotland or the High Court of Northern Ireland, to be transferred to the Upper Tribunal.
As noble Lords may recall, the House has already considered this issue in relation to England and Wales in Committee when what is now Clause 20 was added to the Bill. I believe that it is fair to say that the Committee welcomed those provisions. Having discussed the matter further with the judiciary and the devolved Administrations in Northern Ireland and Scotland, we are now moving to replicate this provision across the United Kingdom.
The effect of these amendments would be to allow more judicial reviews on immigration, asylum and nationality matters to be heard by Upper Tribunal judges with specialist immigration knowledge and would free up judges in the Court of Session and the High Court in Northern Ireland to deal with other complex civil and criminal work.
Amendment 108 also aims to ensure consistency in the justice systems across the United Kingdom by reintroducing the second-tier appeals test for applications to the Court of Session to appeal against a decision of the Upper Tribunal. The rule of court which introduced this test in Scotland was found to be ultra vires in a decision of the Inner House and, as a result, the rule was revoked by the Lord President. The test requires that, in order for the Court of Session to grant permission to appeal, it should be satisfied that the proposed appeal raises an important point of principle or practice, or that there is some other compelling reason to hear the appeal.
My noble friend Lord Avebury has tabled two amendments seeking to limit or remove the second-tier appeal test in nationality and immigration cases. I do not wish to prejudge what my noble friend has to say and I will, of course, respond in due course, when we come to the next group. However, as Amendment 108 suggests, the Government fully support a second-tier appeals test throughout the United Kingdom.
In summary, the Government believe that where an appeal has been heard and determined by both the First-tier Tribunal and the Upper Tribunal, it seems entirely appropriate that the test to take the matter to a third judicial body should be high. Furthermore, the test is designed to manage effectively the flow of cases to the Court of Appeal and ensure that the court’s attention is focused on the most important cases.
As I have indicated, Amendments 106, 107 and 108 will ensure that there is a consistent framework across the United Kingdom and will remove the spectre of forum shopping between jurisdictions. I therefore beg to move.
Lord Avebury
My Lords, can my noble friend confirm that these provisions concerning Scotland will be the subject of a debate on a Sewel motion in the Scottish Parliament? Your Lordships may recall that when we debated the Bill that became the Borders, Citizen and Immigration Act 2009 in your Lordships' House, the Court of Session stated very clearly in its response to the government consultation, Immigration Appeals: Fair decisions, Faster justice, that it regarded the proposed transfer as premature. The Scottish Government had expressed similar concerns and had asked the UK Government not to proceed with the change at that time. I would be most grateful if my noble friend could respond to that point.
Lord Ahmad of Wimbledon
My Lords, Amendments 106 and 107 would not in themselves lead to any cases being transferred from the Court of Session or the High Court of Northern Ireland to the Upper Tribunal. It is simply an enabling power. In Scotland, an act of sederunt would need to be made by the Lord President, with the agreement of the Lord Chancellor, before any class of judicial reviews could be transferred from the Court of Session to the Upper Tribunal. The Court of Session will continue to have the discretion to transfer other applications for judicial reviews relating to reserved matters not specified in the act of sederunt by order.
I say to my noble friend that the same is true for Northern Ireland. Before the transfer of a class of judicial review cases from the Northern Ireland High Court to the Upper Tribunal, a direction would be made. As such, a legislative consent motion would not be required.
Lord McNally
“Permission to appeal from Upper Tribunal to Court of Session
In section 13 of the Tribunals, Courts and Enforcement Act 2007 (right to appeal from Upper Tribunal) after subsection (6) insert—“(6A) Rules of court may make provision for permission not to be granted on an application under subsection (4) to the Court of Session that falls within subsection (7) unless the court considers—
(a) that the proposed appeal would raise some important point of principle, or(b) that there is some other compelling reason for the court to hear the appeal.””
Lord Avebury
“Immigration and nationality appeals from the Upper Tribunal
Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (right of appeal to court of appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.”
Lord Avebury
My Lords, noble Lords will be relieved to hear that I am not going to repeat the arguments that were advanced when these proposed new clauses were debated in Committee. But I should remind noble Lords that the first new clause would remove altogether the additional and highly restrictive requirement to show an important point of principle, practice or some other compelling reason in immigration and nationality appeals generally from the Upper Tribunal to the Court of Appeal. The second new clause removes that requirement only where the grounds of appeal include refugee or human rights grounds.
My noble friend Lady Northover, who replied to the amendment in July, agreed that the class of cases that we are dealing with can be both complex and of the utmost importance. They deal with grave problems that deserve the anxious scrutiny of the court system. But she claimed that the second-tier appeals test provided just that.
However, I also observed that because of the increased rotation of judges under the Bill, inevitably there would be judges in the Upper Tribunal who would be less familiar with the complexities of immigration and asylum law. In the case of PR (Sri Lanka), which I mentioned on the last occasion, Lord Justice Carnwath said at paragraph 39:
“Parliament has thus provided a statutory framework within which the Senior President and Chamber President should be able to ensure that the gateway to appeals to that level is controlled by judges of appropriate status and experience”.
I fear that that may not always be the case.
In the same case, the Court of Appeal found against the argument that there was a compelling reason for allowing PR's application to appeal from the Upper Tribunal’s adverse decision. It was acknowledged that he had been tortured and that the Second-tier Tribunal had corrected an error of law on the part of the First-tier Tribunal. But the Court of Appeal concluded that:
“The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as require the attention of the Court of Appeal”.
That reference was not picked up in our previous debate, nor did the Minister say anything about the Court of Appeal's remark that it would be wrong in principle for it to be constrained by ministerial assurances on asylum cases given in 2010.
There was also the point that because of the LASPO Act there would be more unrepresented appellants in the Upper Tribunal, which has already been mentioned on a previous debate. One cannot help feeling that the real reason the Government have got to this point is concern that the rights of immigrants and asylum-seekers, never a popular minority, are being subordinated to the need to ration scarce judicial resources. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, put it, and quoted with approval in PR (Sri Lanka):
“The rule of law is weakened not strengthened if a disproportionate part of the court’s resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff”.
Personally, I cannot think of any more compelling circumstances than the risk that a person may be tortured. I am sorry if the Government do not agree with me. I beg to move.
Lord Ahmad of Wimbledon
My Lords, as my noble friend Lord Avebury has explained, his Amendments 108ZA and 108A also relate to the second-tier appeals test. These amendments seek to remove immigration and nationality appeals, or alternatively those relating to the Refugee Convention or the European Convention on Human Rights, from the scope of the second-tier appeals test. We debated similar proposals in Committee on 4 July.
As my noble friend Lady Northover said at that time, the Government fully appreciate the serious nature of these kinds of appeals, as do the courts. In fact, the immigration and asylum chambers in the First-tier Tribunal and Upper Tribunal were created expressly to deal with these matters and are composed of judges who are experts in this particular area. The Government remain satisfied that they provide the expert rigorous scrutiny that is required in appeals of this kind.
It is therefore the Government’s view that it is neither necessary nor desirable to make it easier for appeals to continue on to a third judicial hearing, unless there is a very good reason for doing so. The test which is applied at present is either that the proposed appeal would raise some important point of principle or practice, or that there is some other compelling reason for the relevant appellate court to hear the appeal.
Removing the test in these cases could see the Court of Appeal in receipt of a high volume of cases which would not have been granted permission under the second-tier appeals test and which may further slow down decisions on some of the most important cases heard there. The test allows judges to determine which cases have a compelling reason to reach the Court of Appeal, a situation which the Government are keen to see continue.
My noble friend also raised the issue that the Court of Appeal in PR (Sri Lanka) ruled that the second-tier appeals test did not allow permission to appeal for individuals facing torture or death on their return to their country of origin. The judgment in this particular case upheld the current system and the suitability of the Upper Tribunal to make decisions on matters of this nature. The judgment specifically states that:
“The two tiers of the Tribunal system are, and are plainly to be regarded as, competent to determine matters of this kind”.
It then goes on to say:
“In short, there is no case for contending that the nature of an asylum-seeker’s case which has failed twice in the Tribunal system is a compelling reason for giving permission for a further appeal”.
These cases have already been heard in the most appropriate part of the system and the second-tier appeals test allows sufficient discretion for judges to grant permission to appeal where they see that there is a compelling reason to do so.
My noble friend Lord Avebury is someone who I personally regard as a great champion of human rights and he is someone who has stood firm in ensuring that, where there is torture across the world, people who come to this country are fully protected. I totally align myself with the sentiments that he has expressed. However, the position of the Government is clear. Finally, I would add that the courts have been clear that there is no reason to believe that the United Kingdom would be in breach of any international obligation if appeals from the Upper Tribunal are available only under the second-tier appeals test.
I would therefore urge my noble friend to withdraw his amendment.
Lord Avebury
My Lords, I am most reluctant to withdraw the amendment, but I can see that at this point in the Bill it would be purposeless to press the matter to a Division. I can say only that I am really disappointed in the reply that I have had from my noble friend. I am sure that I am not going to be the only one to feel that emotion. I know that the Immigration Law Practitioners’ Association has submitted a detailed argument on this matter to the Government as well to your Lordships who are likely to take part in this debate. I do not feel that adequate justice has been done to the force of its arguments. But, as I say, I do not see any reason why I should press this to a Division this evening. I therefore beg leave to withdraw the amendment.
Baroness Deech
“Appeals relating to regulation of the Bar
(1) Section 44 of the Senior Courts Act 1981 (extraordinary functions of High Court judges) ceases to have the effect of conferring jurisdiction on judges of the High Court sitting as Visitors to the Inns of Court.
(2) The General Council of the Bar, an Inn of Court, or two or more Inns of Court acting collectively in any manner, may confer a right of appeal to the High Court in respect of a matter relating to—
(a) regulation of barristers,(b) regulation of other persons regulated by the person conferring the right,(c) qualifications or training of barristers or persons wishing to become barristers, or(d) admission to an Inn of Court or call to the Bar.(3) An Inn of Court may confer a right of appeal to the High Court in respect of—
(a) a dispute between the Inn and a member of the Inn, or(b) a dispute between members of the Inn;and in this subsection any reference to a member of an Inn includes a reference to a person wishing to become a member of that Inn. (4) A decision of the High Court on an appeal under this section is final.
(5) Subsection (4) does not apply to a decision disbarring a person.
(6) The High Court may make such order as it thinks fit on an appeal under this section.
(7) A right conferred under subsection (2) or (3) may be removed by the person who conferred it; and a right conferred under subsection (2) by two or more Inns of Court acting collectively may, so far as relating to any one of the Inns concerned, be removed by that Inn.
Baroness Deech
My Lords, I rise to speak to Amendments 108AA and 122AA.
In brief, these amendments seeks to transfer the jurisdiction for appeals by barristers—or in some cases the Bar Standards Board—against certain disciplinary matters from the visitors to the Inns of Court to the High Court. The transfer of the visitors’ jurisdiction is something that the senior judiciary and the Bar Standards Board have been working towards for a number of years. We welcome an opportunity to get this into the law. I trust that the Government will accept these amendments.
The background is that judges have long exercised an appellate jurisdiction in relation to the regulation of barristers. Since 1873, judges of the High Court have been exercising this function as part of their so-called extraordinary functions in their capacity as visitors to the Inns of Court. In exercising this jurisdiction, the law being applied is derived from the constitution of the General Council of the Bar and the Inns of Court to which all barristers subscribe.
For some time, the Bar Standards Board has been in discussions with the judiciary about transferring the jurisdiction formally to the High Court. The current system is anachronistic and there is general agreement that it should be updated. As these appeals are already heard by High Court judges, the main impact of the change would be to enable these cases to be dealt with in the usual manner via the normal list in the Administrative Court. This is consistent with the disciplinary arrangements for solicitors and would save time and administrative burden for the courts service.
The clause was previously included in the draft Civil Law Reform Bill in the previous Parliament, but it was unable to be proceeded with for lack of time. This is why I hope the Government will now accept it. I beg to move.
Lord Ahmad of Wimbledon
My Lords, as the noble Baroness, Lady Deech, has explained this new clause abolishes the jurisdiction for High Court judges to sit as visitors to the Inns of Court and confers on the Bar Council and the Inns of Court the power to confer rights of appeal to the High Court in relation to the matters that were covered by the visitors’ jurisdiction.
The Government agree with the noble Baroness that the practice of High Court judges sitting as visitors to the Inns of Court is inappropriate. The new clause does not itself abolish appeals to visitors or automatically create a right of appeal to the High Court; it is for the Bar Council, the Inns of Court and their regulatory bodies to determine any new arrangements in this respect. However, once the clause is commenced, the practice of High Court judges sitting as visitors in exercise of their extraordinary functions as judges would cease. This is achieved by repealing Section 44 of the Senior Courts Act 1981 in so far as it confers jurisdiction on High Court judges to sit as visitors to the Inns of Court and enabling instead a right of appeal to be conferred to the High Court for barristers and those wishing to become barristers.
The role of judges as visitors is long-standing but somewhat opaque. Repealing the current jurisdiction and conferring express powers to create rights of appeal in respect of the relevant decisions is preferable because it promotes clarity and certainty, which are rightly the aims of modern law.
As the noble Baroness, Lady Deech, has proposed, the power to confer rights of appeal to the High Court would be available in relation to all matters in respect of which the visitors currently have jurisdiction. Under the current regulatory arrangements of the Bar Council, the visitors’ jurisdiction includes disciplinary decisions of the Council of the Inns of Court and decisions taken by the Bar Council’s Qualifications Committee. It would also include disputes between Inns and their members, or those wishing to become members, in recognition that historically the visitors’ jurisdiction extended to appeals from all decisions relating to the conduct of an Inn’s affairs. Abolishing the role of judges sitting as visitors is supported by the Lord Chief Justice, the Bar Standards Board, the General Council of the Bar and the Inns of Court. Enabling appeal to the High Court instead will improve administrative efficiency and transparency, and at the same time make the appeal arrangements for barristers more consistent with those for solicitors. I am therefore grateful to the noble Baroness for bringing this matter before the House and the Government are happy to support the amendment.
Lord Touhig
“( ) In fixing such an amount, and subsequent additions, account must be taken of the person’s relevant weekly income, excluding housing benefit and child related benefits, and allowance must be made for the protection of a reasonable financial subsistence level, in the manner used to determine the initial fine.”
Lord Touhig
My Lords, the intention behind this amendment is to ensure that the new financial penalties imposed on people who make late or incomplete fine repayments do not in any circumstances force individuals or families below a reasonable level of subsistence. In particular, it seeks to safeguard the level of income necessary to sustain housing security and to meet the basic needs of dependent children. It is based upon the means-testing system already used to set fines which is accepted by the Government as a suitable mechanism for ensuring that, while offenders feel financial hardship, their welfare and that of their family is not jeopardised as a result. The noble Lord, Lord McNally, in a Written Answer to a Question I posed, stated:
“There is a very fine balance between protecting vulnerable debtors as well as ensuring that justice is served and the order of the court is met”.—[Official Report, 24/9/12; col. WA345.]
I believe that this amendment falls on the correct side of that line; it will prevent neither the penalisation of those who do not keep to their payment plans nor the unprecedented step of recovering operational costs in such cases. It will simply mean that in some situations where this process could hinder a person’s ability to pay for necessities such as rent or family meals, the precise amount recoverable will be adjusted.
The level of concern about the absence of any such safeguard in the Bill as it stands is reflected in the support for this amendment from a number of charities. These include Housing Justice, the largest Christian housing charity in the UK; the Zacchaeus 2000 Trust, a London-based charity for vulnerable debtors; Depaul UK, which works nationwide with disadvantaged young people; and the Catholic Children’s Society in Westminster, which works with some of the poorest families in this area.
I am grateful to the noble Lord, Lord McNally, for agreeing to meet me last week to discuss my concerns about this matter, but he knows that I left the meeting feeling somewhat concerned because I learnt that one of the most worrying aspects of Clause 21 is that the charging structures for the new penalties will not be laid before Parliament, but will be set following commercial negotiations with the firms contracted to collect fine payments—and this will not happen until after Parliament has passed the legislation. In effect, we are being asked to write a blank cheque for unknown contractors with no inbuilt safeguards to ensure that the most vulnerable individuals and families will be protected from threats to their basic subsistence income. With this clause, our system of justice will depend on the negotiating skills of civil servants pitted against private contractors out to make a profit.
The Courts and Tribunals Service, responding to a freedom of information request on October 3, said that the penalties will be set in proportion to the actual costs of chasing up a late or incomplete repayment. But I have discovered that the service does not hold information relating to the average cost of such processes. This means that any reasonable estimation of the likely amounts that people will be charged is impossible to make. In Committee on 2 July at col. 539 the noble Baroness, Lady Northover, admitted that in practice the actual amount may sometimes even exceed that of the initial fine. Moreover, we have seen no substantive analysis of the likely impact on children or on housing security, neither of which is explicitly addressed in the impact assessment.
The Courts and Tribunals Service, in a letter to the Caritas Social Action Network on 5 November, stated that, “we do not believe there will be significant impact on a child’s welfare”. But in another freedom of information request dated 3 September, I find that the service does not hold information on the family profiles of those sentenced to pay fines. It is therefore unable to project how many dependent children are likely to be affected. Similarly, the absence of information on the housing situations of those currently failing to meet fine payment plans prohibits any projection of how the new penalties will affect people’s ability to meet rent payments. In a letter to the Caritas Social Action Network, the service sought to provide reassurance by predicting that the penalties will be “small and proportionate”. But as those with experience of working to support people in financial hardship will know only too well, any amount regarded as small in some circumstances will in fact be very significant in others. This is particularly significant at a time when an increasing number of families are struggling to meet the costs of essentials including heating, food and rent. Even a small change in their income will often have serious consequences.
Lord McNally
My Lords, because I have three amendments in this group it may be helpful if I intervene now. I will, of course, respond at the end of the debate to the points that are made.
I pay tribute to the noble Lord, Lord Touhig, who has a personal commitment to and involvement in this area. I found our recent meeting extremely useful. On fee levels, I am advised that it is normal practice at this stage of the legislative process not to set fee levels. It is certainly not unprecedented. Perhaps I may also take up the point the noble Lord made in closing. We are talking about fines imposed by the court. There is a responsibility on the offender to pay those fines and a responsibility on the Government to put in place a means of collecting them. It is also important that we look at making affordable financial penalties so that they do not produce the devastating impact that the noble Lord referred to.
The Government take the view that the recovery of collection costs provided for in Clause 21 differs greatly from means-tested fines. A fine is a financial penalty imposed by the court as punishment for a criminal offence. The level of fine is based on the seriousness of the offence and the offender’s ability to pay. On the other hand, collection costs are administrative charges which would apply only as a means of recovering the costs of collecting a fine following a default. They are not intended as a further punishment. The collection costs will be proportionate and have a direct correlation to the actual costs of collecting the unpaid fine. To introduce a means-tested charge, as the noble Lord suggests, would create a complex and resource-intensive administrative system which would increase the operational costs, thus leading to increased collection costs overall.
The Government are doing everything they can to ensure that individuals avoid defaulting in the first place and that fines are not set at a level that is inappropriate and unaffordable. We all agree that fines set at the wrong level are to no one’s benefit. The House should be aware that fines officers have the powers to determine payment plans to help individuals manage their fine payments. Furthermore, we introduced amendments to the Bill in Committee which enable the sharing of data between government departments—primarily Her Majesty’s Courts and Tribunals Service, the Department for Work and Pensions and Her Majesty’s Revenue and Customs—for the specific purpose of ensuring that fines and other financial penalties are set at the right level in the first place.
The additional charge to meet collection costs is avoidable. If a person maintains contact with the court and is complying with the payment plan or pays on time as ordered, they will face no extra costs. I re-emphasise the importance of offenders engaging with the justice system from the onset, particularly if they may have difficulty in paying the fine immediately. It must be remembered that should an individual suffer hardship, they can have their case referred back to the court, which can remit all or part of the collection charges. This provides a strong safeguard. However, it must not be forgotten that ultimately it is the offender’s obligation and responsibility to comply with a court order.
The noble Lord, Lord Touhig, questioned whether it was right to bring forward legislation without setting out the proposed collection costs structure. It is perfectly correct for Parliament to agree the principle of collection costs before the exact costs are finalised. As I said earlier, the collection costs will relate to the direct costs of enforcing an unpaid fine. Therefore, until we commence the procurement tender for fine collection services and see the proposals and costs of the bids, we are unable to give an indication of what the exact collection costs will be. However, I can assure noble Lords that companies will not be able to charge disproportionate fees in order to make a profit and we will publish a revised impact assessment before commencing these provisions.
Government Amendments 110 and 123 create new powers for Her Majesty’s Courts and Tribunals Service to access data held by Her Majesty’s Revenue and Customs for the purpose of enforcing outstanding financial penalties. These new powers will complement those that I have already described in relation to data sharing prior to sentencing. These measures will help Her Majesty’s Courts and Tribunals Service enforce unpaid fines and compensation orders by allowing the courts to obtain additional information on defaulters for more effective and targeted use of attachment of earnings orders.
Under the Courts Act 2003, courts are already able to access an offender’s social security information from the Department for Work and Pensions if the offender has defaulted on the payment of their fine or compensation order and the court is trying to enforce payment. The government amendment will extend these data-sharing arrangements to cover information held by Her Majesty’s Revenue and Customs—for example, earnings from employment.
Amendment 115 makes a technical amendment to Schedule 16 to ensure Her Majesty’s Courts and Tribunals Service can access the full range of information held by the Department for Work and Pensions for the purposes of sentencing an individual.
We treat data protection extremely seriously and, like all our other data-sharing provisions, these provisions are subject to rigorous safeguards. Accordingly, data will be shared only with authorised individuals in Her Majesty’s Courts and Tribunals Service, which may use the information only for the purpose of enforcing an unpaid financial penalty. If the information is supplied or disclosed for any other purpose, with certain specific exceptions, the person supplying the data will be guilty of a criminal offence punishable by up to six months’ imprisonment. The Information Commissioner’s Office has been consulted and has welcomed the proposals on the basis that access to shared data will be limited and will be used for specific purposes. I hope that enables a more rounded debate.
The Earl of Listowel
My Lords, I am grateful to the Minister for intervening in that helpful way and for giving that information. I have put my name to the amendment because I share the concerns expressed so eloquently by the noble Lord, Lord Touhig.
It is a naughty time, particularly for the most vulnerable and impoverished families. It is a very hard time and children need enduring and reliable relationships above all. We would want that for all children. The difficulty is that when families are pushed to the very edge it becomes more and more difficult for them to be in reliable and enduring relationships with their children. Pressures are put on the parental relationship and on the attention that parents can give to their children. We heard from the noble Lord, Lord Touhig, about concerns that parents are so short of money that they cannot afford to heat the home and put food on the table. What sort of pressure does that put on the family when parents cannot look after their family in that way? I am aware of this from meeting parents, mostly mothers, of families in temporary accommodation provided by Barnardo’s and also from going out on visits with health visitors and speaking to mothers. It certainly helped me to understand how, in the past, parents have really struggled on the edge of society. Today, in these circumstances and in the financial conditions we are in, it is hard to conceive how difficult it must be for some families to care for their children as they need to.
I am worried about this and am very grateful for the care that the Minister has taken in taking this forward. I was pleased that he could meet the noble Lord and I was sorry I was not able to join that meeting. What he said is certainly helpful, although I am looking at my notes of what he said to see whether there is anything I can come back on now. I do not think there is. I will finish at this point and look forward perhaps to hearing a little more reassurance in his final comments.
I share the concern of noble Lords that we must do everything possible to protect the most vulnerable families at this very difficult financial time. Many of these families are quite chaotic. They may not open their letters and may be in all sorts of messes. There are also people who prey upon them. Just last week I was speaking to a care leaver in her second year at university. She came from an estate in Stockport where she said there were no expectations—she was expected to have children in her teenage years and that would be her life. However, she has gone on from care to university, where she is now in her second year reading law. She says that when she goes back home, there are three predatory loan sharks on her estate. They will lend money—£250 for Christmas but if you do not pay it back by June next year you have to pay £500. There are all sorts of people who prey on these vulnerable families so, as far as possible, we need to protect them as we legislate here today.
Lord Beecham
My Lords, I also strongly sympathise with my noble friend’s amendment, in particular in connection with his reference to the cost of collection. I suspect we will return to that issue when the noble Baroness, Lady Meacher, moves her amendment in relation to bailiffs, because, as was mentioned in Committee and no doubt will be mentioned again today, the cost of collection is often wholly disproportionate to the amount of the fines, particularly when it is in the hands of private firms contracted to either local authorities or the courts. It is quite a different matter when the courts have their own collection services run by their own staff.
There will be considerable concern about the potential direct costs, and the indirect costs, if families are driven further into poverty and we have the problems of homelessness, children being taken into care and the like. It seems that the Government’s intention to outsource this work is likely to aggravate what might be a difficult problem in any event. Clearly, the Government are not going to make any further move on this. That is a matter for regret and certainly something that we will have to keep a collective eye on in future, particularly the likely impact on local authorities if things go wrong and families are unable to maintain the costs.
It is perfectly true that those who receive a financial penalty are obliged to pay it, but the likelihood is that it will not just be them who suffer but their dependants. That has financial as well as social implications. I had hoped that the Government would react rather more positively to my noble friend’s amendment but it does not look as if that is likely to happen. That is a matter of regret and it will be for my noble friend to decide whether he tests the opinion of the House at this very late stage. I suspect he may well not do so, but the issue will not go away. We will undoubtedly want to probe whatever arrangements are ultimately made with those who will be responsible for making these collections.
Lord McNally
My Lords, I am grateful for those interventions. The points made by the noble Lord, Lord Touhig, the noble Earl, Lord Listowel, and the noble Lord, Lord Beecham, are undeniable. There are people whose lives are so dysfunctional and chaotic that they can get into a complete downward spiral in how they manage their lives. It is extremely important that we try to make sure that what happens to them does not make that downward spiral worse.
I am pleased that the noble Lords, Lord Beecham and Lord Touhig, acknowledge that we are dealing with people who have offended, who have been before a court and who have been given a fine. As I said in my opening remarks, if they follow the instructions of the court, they should be able to avoid the worst of the kind of downward spirals that both the noble Earl, Lord Listowel, and the noble Lord, Lord Touhig, referred to. As a former Member of Parliament for Stockport, I could take a rough guess at the estate from which the young lady who was mentioned came. Her story is the other side of the penny to what can sometimes be the bleakest of stories. I have a great-niece who works for Blackpool social services and the stories that she tells me of the sheer dysfunctionality of the some of the families that she has to deal with are out of the range of most of our normal lives.
I do not underestimate this and although I will ask the noble Lord, Lord Touhig, to withdraw his amendment, I emphasise again that, in cases where the most vulnerable are sentenced to pay a fine, it may be deemed appropriate for the court to issue a deduction from benefits order, where a maximum level, which is currently set at £5 a week, can be automatically deducted from the person’s benefits to pay their financial penalty. This is capped at a level so that it does not significantly impact on the person or cause further hardship. This maximum weekly deduction from benefits will not be increased by the introduction of the collection costs, so there is some safety net there.
As I said in opening, the costs will be set at a level that is proportionate to the actual costs of collecting the fine. We are trying and we will be returning to this when we debate the amendment of the noble Baroness, Lady Meacher. On the one hand, we have to be aware of these dysfunctional individuals and families who come into the justice system. However, we have to operate that system and try to get the balance right between the instilling of proper responsibility when it comes to fines imposed by the court and the collection of those fines, so that they do not become a kind of option but are real and we have the means of making sure that they are enforced. At the same time, we must try to ensure that a just punishment of the court does not spiral into unjust impacts on other individuals associated with the person who has to pay the fine.
These are difficult and complex decisions. We hope that we have got them right. I certainly do not object to the noble Lord, Lord Touhig, bringing this matter before the House and his continuing interest in this area. I assure the House that the Government will continue to examine this carefully to see what reforms we can bring forward. The noble Earl, Lord Listowel, referred to the operation of loan sharks. That is something that we need to look at with some urgency as well. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.
Lord Touhig
My Lords, when the Minister came to the Dispatch Box straight after I spoke, I did feel a sense of excitement—I thought he was going to accept my amendment. I thought, “My goodness, there is another Christmas card I will have to send this year”. I am disappointed that the Government do not feel able to support this perfectly reasonable amendment. I fully understand the point the noble Lord makes and I share the view that people who commit offences and are fined should pay those fines. However, I am sure that nobody in this Chamber knows the level and degree of poverty that the people we are talking about tonight experience. The fines might not be a large amount to us but £15 is two weeks’ electricity for a poor family. I fully accept that those who commit the crime should pay the penalty but it is their children and other dependants who ultimately pay the price and suffer far more, perhaps, than the people who are brought before the courts.
I welcome the noble Lord saying that there will be a further impact assessment. Perhaps I may tease him with this idea. Is he prepared to have some discussions about what could be included in that impact assessment? Those of us who have concerns, such as the noble Earl, Lord Listowel, and others, might be able to suggest what should be looked at. In that way, we might arrive at better legislation that will not make victims of the children and dependants of people who commit these crimes, who are innocent in all these matters and will have a more difficult life as a result.
Lord McNally
As I said in my opening remarks, I know how deeply concerned the noble Lord and the noble Earl, Lord Listowel, are about these matters. I would be glad to have further talks with them on what is to be covered by an impact assessment.
Lord Touhig
What can I say? I am most grateful to the Minister and he will certainly be on my Christmas card list. In view of the lateness of the hour, I do not intend to test the opinion of the House at this stage. I am most grateful for the comments made in the debate and I beg leave to withdraw the amendment.