Legal Services Commission

Baroness Butler-Sloss Excerpts

Tuesday 29th January 2013 Lords Chamber

[Lord McNally]

My Lords, I am always fascinated by the way in which the noble Lord dismisses £650,000 as a mere bagatelle, but let us also look at the facts. This scheme for funding such bodies was introduced in 2000 and the three bodies in this consultation were awarded three-year contracts at the end of the previous Administration. Since then, we have twice extended their contracts by one year so that what was originally a three-year contract became a five-year contract. However, as I have explained to the House before, I am afraid that we have to concentrate limited funds on bodies that are giving sharp-end legal aid advice. These three bodies, particularly the Advice Services Alliance and the local Law Centres Network, are umbrella bodies that do not give such advice. Therefore, although in happier days they could win such contracts and do such work, there is simply no money.

[Baroness Butler-Sloss]

My Lords, is the Minister aware or does he appreciate the significance and importance of the Royal Courts of Justice citizens advice bureau? Having been a judge in that court for many years, I had personal experience of the advantages of the citizens advice bureau looking after unrepresented families in my court. Does the Minister realise that taking away the core funding at this moment, when the Government are also taking away legal aid for private family cases, is going to leave the public and the courts in absolute disarray?

[Lord McNally]

The CAB at the Royal Courts of Justice is able to apply for legal aid contracts in the normal way for the part of its work that is directly legal aid work. As regards broader CAB work, the Government have carried out a number of initiatives to provide funding while voluntary organisations make the transition to a much more difficult economic climate. I very much appreciate the record and work of the Royal Courts of Justice CAB in providing legal advice to individuals. However, I can only say to the House—as I have done frequently as we have gone through this exercise—that we are concentrating our resources on the sharp-end providers and will continue to do so.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Tuesday 18th December 2012 Lords Chamber

[Lord Pannick]

My Lords, I understand that Amendment 5, to which I wish I speak, arises in particular out of concern that the House may unintentionally have been misled on Report. I support the noble Lord, Lord Avebury, on Amendment 5. I fully understand the argument deployed by the Government on Report—it would be absurd to allow a person regarded as dangerous back into the country in order to pursue an appeal. My concern is that legal practitioners understand the policy of the Home Office to be to wait until a person with leave to remain travels abroad before then making the decision to curtail their leave, with the express intention of depriving them of the right of appeal from within the United Kingdom. That seems to be difficult to reconcile with the rule of law. I ask the Minister in his response to Amendment 5 at least to give the House an assurance that decisions to curtail leave to remain will not be deliberately delayed until a person travels abroad, with the intention of depriving them of a right of appeal from within this country.

[Baroness Butler-Sloss]

My Lords, I declare an interest as co-chair of the human trafficking parliamentary group. If there are reasonable grounds for someone being understood to be a victim of trafficking, it would be extraordinarily unjust and contrary both to the Council of Europe’s convention and the directive of the European Union, to both of which the Government are signatories, to treat that victim in the way that it is possible that he or she would be treated if the amendment were not passed.

[The Earl of Listowel]

My Lords, I would be most grateful if the Minister could clarify the position, raised by the noble Lord, Lord Avebury, regarding this sudden moment of transition at the age of 18. I would appreciate him reassuring the House that the Government do not consider there to be a single cut-off immediately after the child moves past the age of 18 but that there is humane consideration of a young person’s need for a transition into adulthood. With young people who have been traumatised—for instance, those who have been trafficked—one sees that their development may well be delayed and one has to allow for that. In the Children (Leaving Care) Act, we see special consideration being given to their needs, because of their early trauma, up to the age of 21 and, in some cases, until the age of 25. We need to pay attention to the developmental needs of children and to recognise that some children, particularly those who have been traumatised in their early life, need more care and attention as they make that transition into adulthood.

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[Lord Goodhart]

My Lords, I am going to take a rather unusual position on this and say that I am afraid I do not agree with Amendment 3. I was considerably involved in the drafting of the Constitutional Reform Act 2005 and I had no objection at that time to Sections 48 and 49, which are now objected to in this amendment. The reason why I do not welcome this amendment is that the chief executive is an administrator, not a judge. That being so, I see no serious reason why Lord Chancellors should not continue to be involved in the proceedings of Sections 48 and 49 as they now are. The administration of an issue which involves both those in charge of costs and those in charge of the law needs to recognise the real issues here because of the way in which the funds get to the Supreme Court.

I am in general a strong supporter of the two former judges who have put their names to this amendment and of the noble Lord, Lord Pannick, but in this case I fail to be able to agree with them as they would clearly like.

[Baroness Butler-Sloss]

My Lords, although this may seem to be a technical point to some Members of the House, it is actually a matter of very considerable importance. It is wrong in law and it is constitutionally inappropriate. I am very surprised that the noble Lord, Lord Goodhart, who is an excellent lawyer, has not picked up either of those points. I have to say that the Minister, the noble Lord, Lord Ahmad, got it wrong, and it is important to get it right. It is important to preserve the separation of the judiciary, and I speak as someone who is not a member of the Supreme Court and was not a member of the Judicial Committee. However, the separation of the judiciary from the Executive is crucial at every level, so to have the chief executive of the Supreme Court answerable to the Lord Chancellor and not to the president of the Supreme Court is, to say the least, an anomaly. Also, rather more seriously, it is incorrect. This needs to be put right, otherwise there really will be a perception that the Lord Chancellor not only controls the finances but controls the person who controls the financing of the Supreme Court. I strongly support this amendment.

[Lord Goldsmith]

My Lords, I am the first Member to speak to this amendment who was a member of the Government at the time that the Constitutional Reform Act 2005 was passed. I support the amendment, as I did on Report, at which point I gave the House an anecdote to illustrate why I think that it is right. It is because of the risk of the perception of a lack of independence, about which the noble and learned Lord, Lord Phillips of Worth Matravers, and others have spoken. I do not want to repeat what I said at the previous stage but, in the light of what may be said by the noble Lord, Lord McNally, it is right to remind ourselves how the Constitutional Reform Act came about.

The Act did not come about—how can I put this politely?—in the most orderly way, and the consequence was that we rather scrambled to get to the conclusions. I am happy to see my noble and learned friend Lord Irvine of Lairg in his place and I should say that a number of noble Lords were involved in the process. However, it does not surprise me that, despite those valiant efforts, in the end we did not get the legislation completely right, and this is a provision which we did not get completely right. If we had known about the examples to which the noble and learned Lord, Lord Phillips of Worth Matravers, has at least referred, if not identified, and if the risk could have been seen that the chief executive somehow being responsible to the Lord Chancellor might lead to the view that the Supreme Court was in some way connected to the Government so that the Government were able to influence its decisions, we would not have included this provision. Therefore, despite the time spent on the Bill, in the end much of it was done through discussions between my noble and learned friend Lord Falconer of Thoroton and the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, although a lot also happened on the Floor of the House. If the only thing that was not quite right was this particular provision, it was still a considerable triumph, but I hope that the noble Lord, Lord McNally, those behind him and of course ultimately the Lord Chancellor will see that this is a small but hugely important change that will do no harm at all to any of the issues of administration.

The Lord Chancellor is not responsible for the finances of the Supreme Court, a point that was made clear by my noble and learned friend Lord Falconer in, I think, the very passage to which the noble and learned Lord, Lord Phillips of Worth Matravers, referred. What would happen is that a bid would be put forward that could not be altered and it would then come directly from the Consolidated Fund. I do not think that there is anything to be accountable for. For those reasons, I strongly support the amendment.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Monday 10th December 2012 Lords Chamber

[Lord Pannick]

My Lords, I have made such points as I think may assist the House in answer to the arguments brought forward in this debate and the arguments presented by the Joint Committee.

[Baroness Butler-Sloss]

My Lords, I apologise for arriving late at this part of the debate. I did not propose to speak and hold no strong views about this amendment, but I have to rise just to deal with a point made by the noble Lord, Lord Pannick. He said that judges neither need nor deserve any protection. That is true in general, but I think he has overlooked the fact that certain judges get death threats. There are groups of judges, of which I happen to be one, who during their time as a judge received a number of death threats. In my case they came both from people who could recognise me because they had appeared before me in court and from those, such as Fathers 4 Justice, who not only made death threats against me but, I must tell your Lordships, also threatened to kidnap my dog, which I thought was much more serious than the death threat against me. More serious than the threats that either I or the family court judges receive are those made against judges in terrorist trials. They absolutely need and deserve protection, so I take issue with the noble Lord, Lord Pannick.

[Lord Pannick]

I entirely agree that judges deserve all the protection necessary in those circumstances. However, the press and broadcasters are perfectly entitled to publish photographs of the judge who has heard the terrorist trial or any other sensational case. This amendment would have no impact in that respect.

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[Baroness Butler-Sloss]

My Lords, I, too, have been burgled and I have absolutely no sympathy with burglars, but this amendment goes too far. I am very concerned about proposed new subsection (5A), under subsection (2) of Amendment 113C, as regards using the words “grossly disproportionate”. As the noble and learned Lord, Lord Morris of Aberavon, has just asked, how on earth would one advise a jury—I am glad to say that I was not a criminal lawyer but I did a little crime—that you can be disproportionate but not “grossly disproportionate”?

I share the view of the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, that it is contrary to the European Convention on Human Rights. I believe it is a matter that would end up in Strasbourg if we were not extremely careful. The Government—I can see for the best of intentions—are just going too far.

My recollection about the Martin case, which I read only in the press, is that he was shot in the back, which would be “grossly disproportionate”. Obviously, one could see why he did not get the existing protection that the Lord Chief Justice has given and that is in the standard advice to juries, as the noble Lord, Lord Pannick, read out. We do not need to go further. To go further will cause real trouble.

[Lord Goodhart]

My Lords, I regret that I cannot support this new clause. I agree entirely with what the noble and learned Lords, Lord Woolf and Lord Lloyd of Berwick, and a number of other practising lawyers have said. I regard this matter as very unsatisfactory. I have not practised as a barrister in recent years but I practised in the past and this proposal is unsatisfactory.

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[Baroness Hamwee]

My Lords, I have Amendments 113GZB and 113GC in this group, to which my noble friend Lady Linklater has added her name. These also deal with the term “exceptional” and with the application of the section in the Criminal Justice Act 2003 that provides for the court to have regard to the purposes of sentencing, which are listed as:

“the punishment of offenders … the reduction of crime (including its reduction by deterrence) … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation”.

I do not seek these amendments to exclude punishment from the matters to which the court must have regard and I acknowledge that society must deal with offenders in such a way as to win and retain the confidence both of victims and the general public. However, I cannot extrapolate from the research referred to in the impact assessment that where there is a punitive element, there is less reoffending.

Reading through the impact assessment yesterday, it struck me that the sentences in question, which the impact assessment prays in aid, will have been tailored to the offender by the court. In other words, they will be much more bespoke than it seems we are being asked to agree. Certainly, there is no comparison with a control group. Almost by definition, there cannot be a control group in these circumstances. We are told in the impact assessment that the rationale for intervention is to give tools to sentencers. As we have heard—not only tonight—we already have an extensive toolbox and we are adding to it with the welcome provisions on restorative justice. However, the theory of having certain tools available and their availability in practice may not always be quite the same. Public confidence comes from reducing reoffending and crime overall and we have heard what victims want. At the last stage of the Bill, I referred to research by the Restorative Justice Council and Victim Support, which amounts to victims wanting to be sure that “he does not do it again”.

The impact assessment also acknowledges that because community orders must be,

“proportionate to the offence committed, delivering a clear punitive element to every community order may, in some cases, cause certain requirements to be substituted by punitive ones”.

This worries me greatly. The Government tell us that some requirements may be labelled punitive, but in fact would be rehabilitative or become rehabilitative. The Minister used the example of requiring someone to get up every morning to go to an educational course. By the end of it, that person might have found it was a good thing, so it will have moved from punishment to rehabilitation. As I have said before—and I do not resile from this—I find both the possible substitution and the labelling worrying: for instance, labelling education or mental health treatment as punitive. The noble Lord, Lord Rosser, has spoken to his amendment, listing the types of community order which may amount to punishment. I depart from others on this because I do not think that saying the punishments “may include” takes us a lot further forward. If it is to send a message to the sentencers, then the new subsection (2A) sends a stronger message, in effect saying that a fine is not a punishment. I realise that we did not focus much on this at the last stage.

Without spending long on this, I very much support Amendment 113GB from the noble and learned Lord, Lord Woolf. This expresses what I for one have not been able to articulate previously. At the last stage and on other occasions we have talked a lot about the characteristics of offenders and their circumstances. We know about mental health problems and substance abuse, which so often underlies them. Other noble Lords will have seen a new report from the Criminal Justice Alliance, drawing attention to the mental health treatment requirement and its underuse. That is a pity, because the very prevalence of mental health problems means such an offender is not exceptional. In Committee, the Minister stated that,

“the courts can tailor any of those requirements to ensure that they do not have a disproportionate impact on offenders”.—[Official Report, 13/11/12; col. 1428.]

I do not entirely follow how the “tightly defined threshold”—as he described it—ensures that the requirements do not have “a disproportionate impact”. My logic is too confused even for me, but I did not quite follow the argument.

The Minister also stated:

“Nothing in the Bill seeks to undermine the judgment and flexibility of the judiciary, but it puts rehabilitation as a key objective”.—[Official Report, 13/11/12; col. 1429.]

Surely it must affect the hierarchy of sentencing purposes and principles and therefore affect the court’s flexibility.

The noble and learned Lord referred to using delicate surgery on the clause and his scalpel has excised the word “exceptional”. As an alternative, my term “particular” is drafted in the hope that in presenting the Government with a menu, they might be tempted to choose one of them instead of rejecting everything. It is a little less extreme than complete deletion, but the noble and learned Lord’s point about criteria is, of course, the important one.

My Amendment 113GC also refers to Section 142 of the Criminal Justice Act, to which I have already referred, about purposes of sentencing. At the last stage my noble friend gave an assurance, saying:

“Let us be clear: of course the five principles are intact”.

However, he went on to say,

“why bring legislation if we do not intend to change things?”

Hansard then reports him as saying:

“We do intend to chance things”.—[Official Report, 13/12/12; col. 1432.]

I do not think it meant that.

My noble friend twice said that it was “not the Government's intention” to,

“jeopardise the prospect of rehabilitation”,

or to,

“detract from the court's existing obligation to have regard to the five purposes”.—[Official Report, 13/11/12; col. 1435.]

It may not be the Government’s “intention”, but I fear that the words of the Bill detract from the five purposes and create a hierarchy. They would require the courts to bring a different approach to sentencing and—as I have already said to the Minister outside the Chamber—I hope that at least he can put on the record some further assurance that is firmer than saying it is “not the Government’s intention” and persuade your Lordships that these words do not do what I fear.

[Baroness Butler-Sloss]

My Lords, I must first apologise for not being present at the beginning of this part of the debate. I cannot see the point of Part 1 of Schedule 16. It really is not necessary. It owes more to the requirement of Government for the perception of the public and the press rather than the reality that a community order is in fact a punishment. I said this at greater length in Committee, so I will not go into it now. A community order is undoubtedly a punishment if it requires somebody to do or not do something, is compellable and the failure or refusal to do it has criminal sanctions. To distinguish between one sort of punishment or another is a really impossible situation. Some punishments will be more severe than others, there is no doubt about that, but the Government are pandering to perception rather than looking at the reality of what the judges and magistrates are doing.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Tuesday 4th December 2012 Lords Chamber

[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.

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[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.

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[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.

Child Abuse: Waterhouse Inquiry

Baroness Butler-Sloss Excerpts

Wednesday 14th November 2012 Lords Chamber

[Lord McNally]

It is true that there is now a large number of inquiries. The noble Baroness says 10 and my brief says nine, but I take the point. The Government did not rule out an overarching inquiry, but there is a time to pause on this. Some of the accusations have been put into perspective by rushing to judgment in an overheated way, through Twitter and the new technologies that we live in. Those in authority need to have confidence. We are talking about child abuse; a very serious crime, which people who have evidence of should report to the police. It is not a responsibility of judicial inquiries to find wrongdoers. It is for the police, and if there are people with evidence, they should take it to the police.

There is public concern about whether Waterhouse missed anything. We have asked a distinguished judge to do a specific task in relation to that: to look at whether any specific allegations of child abuse were missed by that investigation and then to make recommendations to the Secretary of State for Justice and the Secretary of State for Wales. That is the right place to be in.

[Baroness Butler-Sloss]

My Lords, I read the report. I was a colleague of Sir Ronald Waterhouse. He produced, as both the noble and learned Lords have said, an impeccable report. If the terms of reference were, “Are there allegations that were not put to Sir Ronald that have now arisen?”, they would be acceptable. However, the Government have—and the Minister really should be taking this on board—cast aspersions on the report suggesting that he did not do a good enough job. If the terms of reference are changed, which I would ask the Minister to do, to say that any allegations not made to Sir Ronald Waterhouse should be investigated, I suspect the House would be a great deal happier.

[Lord McNally]

My Lords, three of our most distinguished judicial Members have spoken out very strongly about Sir Ronald Waterhouse’s integrity. I associate myself completely with them. That was not the situation we faced. We faced growing public concern about whether child abuse allegations had not been investigated. The judge in charge of the new inquiry is taking time to look carefully at what she needs to do the job and will look again to see whether the plethora of allegations that are around need re-examining and whether something was missed in the details of inquiry. I do not accept that that impugns the integrity, processes or findings of the original report. We dealt with a situation of real public concern. I hope the way Mrs Justice Macur now takes it forward will meet that public concern.

I repeat that I associate myself entirely with the comments of senior judicial colleagues about Sir Ronald Waterhouse and his work. It is important to get this on the record. We are indebted to the senior judiciary for so often being willing to take on these very difficult tasks on behalf of society as a whole.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Tuesday 13th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I was thinking about not brandy but confectionery and I do not find this fudge, if one thinks about it, as being sweet and tasty. In every other way, however, I absolutely follow what the noble Lord, Lord Ramsbotham, has said, although my remarks will cover rather narrower ground than his.

I really wonder, as others have, whether this provision is necessary. If it is only gesture politics—I say that rather bluntly—it might not be so bad, although I would still deplore it because I deplore gesture politics, but it must mean something. As the noble Lord said, every day the courts do the things that we are being told this provision is directing them to do. I do not believe it does anything but restrict sentencing choices. It imposes a requirement that may be detrimental for offenders whom one is seeking to rehabilitate. I do not need to amplify that; we have a lot to get through and these points will be made better by others throughout today.

I wonder whether Amendment 2 achieves anything. I support the sentiment behind it but changing “must” to “may” does not add anything if we accept that punishment is already one of the purposes of sentencing —which it is, under Section 142 of the Criminal Justice Act 2003. As I say, however, I am with that sentiment.

The letter dated 7 November that we received from the Minister said that the term “exceptional circumstances” is very tightly drawn. I had to go back and reread that, because I think “exceptional circumstances” is very widely drawn when one thinks about the context in which we are debating this. As noble Lords have so often said, and as others outside this House have reminded us, such a very high proportion of offenders suffer from mental illness, substance misuse and dependency that one could not say that there was anything exceptional about their circumstances. The noble Lord, Lord Ramsbotham, referred to debt in the context of imposing a fine. That made me think that being in very straitened financial circumstances, combined with other factors, is often a prompt or a nudge towards theft and various offences.

When we last debated this schedule, I suggested that “particular circumstances” would be a better term than “exceptional circumstances”. Discussing that with colleagues later, we wondered about “special circumstances”, and my noble friend Lady Linklater has tabled Amendment 6 to propose that term. Essentially, we are trying to suggest a number of other possible terms—not alternatives because I do not think “exceptional” is right—if the Government are insistent, as I expect they will be, on retaining this part of the schedule. The noble and learned Lord, Lord Woolf, has taken a scalpel to it and pointed us to the inconsistency between the terms “just” and “exceptional circumstances”. I am very happy to line up behind him if that is the way that the House thinks we should go if we do not get rid of this altogether.

[Baroness Butler-Sloss]

My Lords, I put my name to Amendment 5, but I strongly support what the noble Lord, Lord Ramsbotham, said and his Amendment 1 to take the whole of this out. I am also happy to support Amendments 4 or 6. I shall make the very obvious point that every community order will be, for the offender, a form of punishment because it is mandatory. You do not need to use the word “punishment” because it is implicit in a community order. I am sorry to say it again, but since the Government have put a form of punishment as part of a community order, as if a community order was not a punishment, I find this extremely difficult to follow. The terms are in conflict with each other in this proposal by the Government. I had not seen it that way to quite the same extent as I did looking at this today. For goodness sake, why put it in? It is sad that the Government seem to need to use the words “punitive” and “punishment” when it is already clear that a community order is punishment because it is an order that whoever receives it will have to obey. If that particular offender does not obey a community service order, he or she will be punished for failure to obey a punishment that has already been imposed. In my view, the words “punitive” and “punishment” are unnecessary, inappropriate and profoundly unattractive. Like the noble Baroness, Lady Hamwee, I wonder whether this is gesture politics. I very much hope it is not, but she made a point that this House ought seriously to consider.

I do not mind whether we use the word “particular”, as the noble Baroness, Lady Hamwee, said, instead of “exceptional”. Preferably, perhaps, we could do what the noble and learned Lord, Lord Woolf, said, which would be to take the word out altogether. The noble Baroness, Lady Linklater, has suggested using “special”. The point is that “exceptional” should not be there for the reasons that the noble and learned Lord has already given. I do not mind how it is altered but the word exceptional has to come out.

The Government have to listen to the people in this House who spoke last week and today and said that this will not do. As I think I said previously, I urgently and respectfully suggest to the Ministry of Justice that this is an unsuitable way to be going ahead. As I have already said, it is profoundly unattractive. The words “punitive”, “punishment” and “exceptional” should be taken out. The Government should recognise that a community order is a punishment. They should not just look to the lobby of the press or the public, but should do what is right.

Claims Management Companies: Unwanted Text Messages

Baroness Butler-Sloss Excerpts

Monday 5th November 2012 Lords Chamber

[Lord McNally]

If the noble Lord means complaints about the rogue calls, I do not know, because this Question is not about the rogue calls. In my letter, I will cover it. On the question of texts, the Information Commissioner has announced that he is preparing to levy some very heavy fines on people who abuse the system with texts. But I will make the question on unasked-for calls part of my inquiry and put the reply in the Library of the House.

[Baroness Butler-Sloss]

My Lords, would the Minister add e-mails? I get an enormous number of e-mails every day, generally about PPI but about a whole lot of other things, too. They all seem to be done at about three in the morning. E-mails are just as serious; I spend such a lot of time just deleting all these e-mails on a daily basis. Would the Minister add e-mails to texts and phone calls? I also get the texts and the phone calls.

[Lord McNally]

I agree; I know what absolute anger this matter causes. It sometimes raises a groan when Ministers announce the following, but a cross-industry working group has been set up led by the Direct Marketing Association and including the MoJ’s claims management regulator, the ICO, Ofcom, the Telephone Preference Service, the OFT and the Advertising Standards Authority. They are looking across the piece at what is undoubtedly a nuisance.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Tuesday 30th October 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I had not intended to speak, but I strongly support the speeches of the noble Lord, Lord Ramsbotham, and the noble and learned Lord, Lord Woolf. I add my congratulations on restorative justice, although the points made by the noble Baroness, Lady Linklater, were such that I hope that the Government will listen carefully to them.

Punishment needs to fit the crime, there is no doubt about that, but I share alarm—alarm really is the word—about the use of the words “punitive element” and the requirement for punishment, because it is only in exceptional circumstances that one would not go down that path. There will be many circumstances which are not exceptional where it would be unjust or inappropriate to make an order that was seen as a requirement of punishment. I urgently ask the Minister to rethink that part of the proposals.

[Baroness Howe of Idlicote]

My Lords, at last I rise. I will try to be relatively brief.

Like other noble Lords who have spoken, I remain puzzled and more than a little exasperated as to why the Government feel that they need to write the word punishment into everything to do with sentencing. Surely, we all know that a court sentence is indeed a considered punishment for the crime. I share to some extent the view of my noble friend Lord Ramsbotham that what has been appearing recently has been playing to the two Galleries.

The other concern that I share with my noble friend is that the whole position of the probation service has not been made clear at this time, so that the two issues could be considered together. Like other Members who have spoken, I have huge regard for the probation service and the work that it has done over many years, going back to my time as chairman of a juvenile court many years ago. Every report on what it is doing, the levels that it has achieved and the prizes that it has been getting indicates what a good job it is doing. The idea that that vital role is to be outsourced to people who are less well trained worries me a lot.

On restorative justice, I must admit that I am a little concerned about the cost which the noble Baroness, Lady Linklater, told us will be necessary before it can be introduced. I very much welcome the idea of it being available, especially at that important moment between conviction and sentencing. I hope that there will be improvements there.

As others have said, we know that community sentences are increasingly being used for lesser crimes. Of greater importance is the fact that they are 8.3% more successful than short prison sentences in reducing reoffending. One has only to think of the number of contacts that you make once in prison that will encourage you to get further involved in crime at a later stage to realise the sheer common sense of that.

Equally welcome would be rather more definition of the exceptional circumstances that can be brought into play. I hope that we are going to get more of a response from the Government about that because it will always be relevant when sentencing vulnerable disabled offenders, younger adults and, even more importantly in many ways, not least with regard to cost, women. It is logical that every effort should be made to keep that group out of prison, not least as their offences are usually minor and they themselves have often been the victims of sexual or other kinds of violent crime. We must also remember—hopefully, all courts do—that any imprisonment may well mean that the children have to be taken into care. Think of the cost, both financial and in terms of the upbringing and disruption of that child’s life. Again, if the accommodation is repossessed by the landlord, who knows? The whole family could be broken up. That, again, is a real concern.

I shall touch on another important issue that has been mentioned: the punitive elements could mean that the rehabilitative elements are unable to be proceeded with. We need proper reassurance that there will not be any nonsense about an imposed curfew or unpaid work, meaning that an offender cannot get the mental health treatment that they need or indeed go to the drug rehabilitation centre. That is such an obvious point that I hope it can be dealt with quickly.

On the issue of tagging, I know that a great deal is going on regarding improvements in these techniques. I am particularly concerned about this because of the use that this can be put to when dealing with not just violent offenders but ones who might have been involved in stalking, whose victims have already suffered huge amounts of sexual and other forms of violence. I would like to hear much more about that. I shall leave it at that—speakers at the end should be as brief as possible.

--- Later in debate ---

[Baroness Butler-Sloss]

Before the Minister concludes, perhaps I may again raise the question of “exceptional circumstances”. I hope that he appreciates the limitation of the word “exceptional”. I think that the lawyers in this House will all agree that that word will be treated by the courts as really meaning exceptional.

[Lord McNally]

I shall certainly take that back. Perhaps I may be quite clear about the Government’s intention. The use of “exceptional” is not a three-lane highway out of a request to have a punitive element. In consultation we have said that we see “exceptional” covering about 5% of circumstances. The point I am making is that the punitive concept is widely drawn and is very much in the hands of the sentencer. However, I will take back the noble and learned Baroness’s point about what the lawyers would make of this. We are expanding the definition from the 2003 Act and will see whether more legal advice is needed on the meaning of “exceptional”. However, it cannot mean that the exceptional becomes the general.

EU: Interpretation and Translation in Criminal Proceedings

Baroness Butler-Sloss Excerpts

Monday 9th July 2012 Lords Chamber

[Lord McNally]

No, my Lords, I do not think we are in danger of non-compliance. As I said in my Answer and, as the noble Baroness indicated, there are some months to go before the directive comes into play. In the mean time, the Ministry of Justice has a massive interest in making sure that Applied Language Solutions provides the quality and service for which it is contracted. We are making every effort to make sure that that happens.

[Baroness Butler-Sloss]

Is the Minister aware of the extent of disruption and delay to criminal trials as a result of the serious inadequacies in court interpreting? Not only does it lead to considerable cost but concerns have been raised by judges across the country, particularly in London, Birmingham and Leeds.

[Lord McNally]

My Lords, there have been individual complaints about performance and there was undoubtedly a very poor start to this contract. However, there have been improvements and we are talking about a system with some 800 requests a day for such interpretation. In the first quarter of its operation there were 26,000 requests in 142 languages. One has to get complaints and performance into perspective, although there is no doubt that a lot was left to be desired in the performance of the contract in its early stages.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Monday 2nd July 2012 Lords Chamber

[Lord McNally]

My Lords, these amendments all relate to the provisions on the deployment of the judiciary. Of particular note is Amendment 140, which introduces an emergency procedure regarding the appointment of deputy judges of the High Court when there is an urgent need to do so. The Bill introduces a Judicial Appointments Commission process for appointing deputy High Court judges and authorising circuit judges and recorders to sit in the High Court. This is an important reform to increase transparency regarding these appointments.

Amendment 140 would deal with situations where there is an urgent and unforeseen demand for a deputy High Court judge and it is not practicable to draw on any judges of the High Court or any of those who have been selected previously by the Judicial Appointments Commission, or to deploy any other judge who is authorised to sit in the High Court or Crown Court in the time available.

The amendment inserts new Section 94AA into the Constitutional Reform Act 2005. The purpose of this new section is to specify clearly circumstances in which the normal Judicial Appointments Commission selection exercise may not be applied in the appointment of a deputy judge of the High Court for a definite period. This may be needed in exceptional circumstances, such as a number of judges being unwell or suffering some other unexpected misfortune, meaning that a particular area of expertise is required at short notice. The amendment specifies what criteria must be applied if the Judicial Appointments Commission is not to select deputy judges of the High Court. It also clearly limits the duration of the appointment to the disposal of the particular business that gave rise to the use of the power.

Amendment 145 inserts a new Part 3A into Schedule 13 of the Bill. The new part deals with the deployment of judges to the Court of Protection. Our new deployment policy has been applied in this jurisdiction and all judicial officeholders are now able to be nominated to sit in the Court of Protection, including deputies and temporary appointees. Of course, in this and all jurisdictions, judges may be deployed only if the Lord Chief Justice determines that the judge possesses the necessary expertise and experience and deems in all other circumstances that it is appropriate for that particular judge to be deployed to that specific jurisdiction. In this jurisdiction, there has been a particular difficulty in ensuring that the court is fully resourced with judges that have the necessary skills and ability to hear these complex and often difficult matters. The amendment enables the Lord Chief Justice to provide appropriate judicial resources from a broader pool of candidates; it also widens the group of judges who can be appointed to act as the senior judge of the Court of Protection, handling certain administrative functions to that court.

The other amendments in this group on judicial deployment are either consequential or drafting amendments to ensure that we have made all the necessary changes and adjustments to Schedule 13 of the Bill. I will not detain the Committee further with this group of amendments, but I can provide further details of these amendments if needed. I beg to move.

[Baroness Butler-Sloss]

Perhaps I could ask the Minister what may be a rather stupid question. Unfortunately, I do not have the Mental Capacity Act in front of me, but I assume that the President of the Family Division and the judges of the Family Division and the Chancery Division are still on the list of those who will be trying these cases, as they are usually the judges who do it.

[Lord McNally]

I tread on very thin ice, but I think that I can assure the noble and learned Baroness that that is the case. If not, I shall make sure as soon as possible that the Committee knows that I am wrong.