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.

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[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.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Wednesday 27th June 2012 Lords Chamber

[Baroness Jay of Paddington]

My Lords, I am pleased to follow the noble and learned Lord in the constitutional points that he and others have made in supporting this amendment. The noble and learned Lord, Lord Woolf, summed it up very well in his Second Reading speech when he said that if this provision in the Government’s Bill went through, the Lord Chancellor would be in a position of giving advice to himself, which in itself is anomalous, if nothing more.

As other noble Lords have made the constitutional points most effectively, I wonder whether I could raise just an administrative question with the Minister. It seems to me surprising that the Government should propose such a potentially flexibly arrangement for the Lord Chancellor in relation to these very senior appointments as it seems to be the Lord Chancellor’s personal choice whether he takes part in a selection panel or not. As far as I can make out from reading the Bill, this may mean that he decides to sit on appointment body “A” but not on appointment body “B”. A question arises about the consistency of the appointing panel’s approach. There is also the rather bizarre question about what happens if the Lord Chancellor decides that he will not be a member of that panel and the panel has been constituted, as we understand it, in the legislation. Who replaces him, how is that replacement chosen, and to whom is he responsible? For all the reasons that noble Lords have given, I suggest that this is both constitutionally and administratively inappropriate. That is why I would be very happy to support the amendment of the noble Lord, Lord Pannick, should he ask the Committee to give an opinion on it today.

I make one further point to reinforce the point which the noble Lord, Lord Goodhart, was making about the change in the Lord Chancellor’s position. This was confirmed in the hearings that the Constitution Committee held on this matter by the present office-holder himself, the right honourable Kenneth Clarke, when he said:

“I think that we will have a Lord Chancellor who is not a lawyer. The lawyers that we have, including me, will not be as senior and distinguished as they used to be ... A better understanding of my role would be to describe me as Secretary of State for Justice”.

That seems to underline the points about potential politicisation, which other noble Lords have made.

[Baroness Butler-Sloss]

My Lords, I agree entirely with what has already been said but I wonder whether I might add another point. I refer to a situation where a Lord Chancellor is not a lawyer or a very senior person but perhaps wants to make his mark in the political world and is much more overtly political than the present Lord Chancellor, who is very distinguished in his own right in the law. I ask the Minister to visualise the meeting of the commission. The Lord Chancellor is a member of the commission. He has a role as the Secretary of State for Justice, but he is only a single member among a number of people. Either he is going to be very powerful and he is going to override what everybody else wants, or he is not going to be very powerful, and he is going to be very dissatisfied with not being able to carry the commission with him. Either way would be extraordinarily unsatisfactory for someone who is head of the administration of justice in running the courts and has some responsibility for the judiciary. It is yet another point that leads me to support the amendment of the noble Lord, Lord Pannick.

[Baroness Kennedy of The Shaws]

My Lords, I too wish to support the amendment of the noble Lord, Lord Pannick. I see this part of the Bill as being one of those ideas which starts with good intent but has risks attached to it: it is the law of unintended consequences. I can understand that those who have looked at the appointment of senior judiciary and have seen the absence of women, for example, have thought that perhaps if somebody—the Lord Chancellor—were sitting on that panel, he would be able to represent more vociferously public concerns about the way in which appointments are recreating the same people. I can see that that was the intention of giving a role to the Lord Chancellor in the current appointment procedures.

However, we must be very conscious of the risks. We should be concerned about the way in which this could be detrimental to our constitutional arrangements and could be the beginning of a much more politicised role for the Secretary of State as Lord Chancellor sitting on such committees. I say this because, regarding the slide to such things, we always say, “Oh, it could not happen here”. I have just heard the decision made in Europe today that the new judge to be appointed to the European Court of Human Rights will not be the preferred candidate coming forward from Britain. The person appointed was pushed by the Conservatives in Europe and supported by Russia and Serbia. The best candidate, Ben Emmerson, one of our most distinguished human rights lawyers, did not get that role because of politicking of the ugliest kind. He was considered to be too protective of human rights.

We should be ashamed of what has happened in that appointment process and we should be aware of what happens when politics enters the fray in judicial appointments and how it can often lead to unsatisfactory outcomes. I raise this as a warning because it happens all too easily. The best candidate has been lost to the European Court of Human Rights and it has happened because of an ugly form of politicking.

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[Baroness Falkner of Margravine]

I am afraid that, unusually, I have to disagree with the noble Baroness, Lady Prashar. It is widely referred to as a nuclear option—we could call it the veto, perhaps, but it is very well known that it is a veto and a very final kind of veto, in that not only does one exercise the veto—if one chooses to do so—but one has to give reasons in writing for arriving at that decision. It is a very tough position to take. The pool from which the candidate would be drawn is so small and so intimately known to one another—the judges of the Supreme Court, for example—that a rejection would be known and would, indeed, indicate a significant level of political interference. It would inevitably get out that a veto had been exercised and people would draw their own inferences as to what had happened. I suggest that that would indicate a huge level of political interference. It would probably leak to the media; there would be wide speculation in and around the legal profession. It would truly be seen, I am afraid, as a nuclear option.

The reality of this provision is that it gives power to several other entities, but not to the individual who is, in the words of the Constitution Committee report, at paragraph 26, responsible and,

“accountable to Parliament for the overall appointments process”.

[Baroness Butler-Sloss]

Taking up what the noble Baroness, Lady Prashar, said, as I understand it this is not just a question of a name going to a Lord Chancellor who has no idea what has gone on before. If there was to be the slightest doubt that this candidate was not suitable, there would have been enormous discussions at a much earlier stage. It is almost inconceivable that somebody would go forward who was known to have reasons for not being acceptable and unless those reasons are such that the Lord Chancellor felt that he could say that, they ought to have been known already.

This does not work in isolation; the judges and the Lord Chancellor discuss a large number of matters extremely carefully over quite a long time. There is no isolation of the Lord Chancellor and his team from the senior judiciary and the appointments commission which is discussing this. I think that the noble Baroness is assuming that the Lord Chancellor is in an ivory tower, not knowing anything until the name comes to him. That is not the position.

[Baroness Falkner of Margravine]

I say to the noble and learned Baroness that if that non-transparent process that she describes, which sounds like the old game of clubbing together to fix it all up, is indeed accurate, there should be no reason for the amendment. In that case, if it is all so chummy, why not have the Lord Chancellor sit on the panel?

The power to veto seems to contradict Section 3(6)(a) of the Constitutional Reform Act 2005, which places a statutory duty on the Lord Chancellor to defend the independence of the judiciary. Not for the first time, one part of an Act—the duty to defend the independence of the judiciary—sits uneasily with the process as defined. Moreover, the process requires the Lord Chancellor to put his reasons in writing. I have already commented on that. It would be far better in increasing transparency and enhancing accountability for the Lord Chancellor to be a member of the selection commission —listening, participating and evaluating the candidate being questioned, without a veto over the appointment—than, after the fact, disagreeing with the selection commission.

In conclusion, I touch on the point made that either a very powerful Lord Chancellor would sit on the commission panel and influence it to go in the direction that he wanted; or, if the Government got their way, that the Lord Chancellor, having sat on the selection panel, could not persuade the panel of his views on an individual candidate and would be deeply dissatisfied because he did not carry the selection panel with him.

I argue that his potential for dissatisfaction would be greater if he had not exercised the veto and was therefore stuck with someone he found it difficult to work with. In fact, it could be said that he would take greater responsibility for working with a candidate with whom he did not entirely agree if he were on the selection panel and had been overruled. He would have been part of the decision-making, he would have been there and heard the argument why the majority of the commission wanted to go in a certain direction and would therefore have to suck it and see. On that basis, I have a lot of sympathy with the Government on the amendment.

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[Lord McNally]

This is my problem as a simple lad dealing with these Silks. I have never used the word “cosy” about the relationship. I have had a chance look at the relationship in the last two years; the last way I would describe the relationship between the Lord Chancellor, the noble and learned Lord, Lord Judge, and the noble and learned Lord, Lord Phillips, is “cosy”. It is businesslike; it is working; but it has an interrelationship which I think is important.

Giving the Lord Chancellor a role in these appointments is not new. As has been said, he already has a role in deciding whether to accept or reject the recommendation of a selection panel. The question is, therefore, how should that input be realised? I understand the different views put forward in the debate, but the Government’s view is that, for these two most senior appointments, given their significant role in the administration of justice, the most appropriate way of achieving this input is to allow the Lord Chancellor to sit on the panels. He can then consider the views of other panel members, submit his own views and engage with the panel members in a meaningful discussion about candidates.

The current system allows the Lord Chancellor to veto a selection panel’s recommendations. This is in itself a major role, but may be viewed as something of a nuclear option—that is what it says in my briefing notes. I think that that option is the one that could only be used in exceptional circumstances and with potentially a heavy price for the relationship with the judiciary and perception of political interference. I do not necessarily agree that these perceptions would be justified, but they are certainly factors which would inhibit the use of the veto. In place of the veto, Schedule 12 provides for a more effective engagement.

A fear has been expressed that this would give the Lord Chancellor disproportionate influence and that the present Lord Chancellor would dominate the proceedings. Perish the thought. Being on the panel, or even having that Lord Chancellor on the panel, would not necessarily mean that the Lord Chancellor would ultimately get his way on the individual appointed, but it would mean that he would have the opportunity to be engaged in the process and make his views known to the other panel members. We are talking about a panel of heavy hitters—a lay chair, plus senior members of the judiciary and appointment commissioners who are strong and independent-minded individuals. They will not simply fall into line with the Lord Chancellor of the day. The Lord Chancellor would have an opportunity to make his case but could also be persuaded of a contrary case by other panel members. However, where the Lord Chancellor does make a persuasive case of the merits of a particular candidate, this could be weighed in the balance in the same way by other panel members.

There are, of course, other possible ways of securing the input of the Lord Chancellor, but we do not consider that any are as effective as our proposal. We could, for example, allow the Lord Chancellor to select a candidate from a shortlist, or through some form of parliamentary hearing. However, we consider that the risk of politicisation of the process from these options is far more acute.

Another option would be to consult the Lord Chancellor at the start of the process. There is nothing wrong with that, but we consider that this is not as effective as having the Lord Chancellor be a member of the panel and be able to put forward his views, listen to the views of others and engage with them in a meaningful way.

[Baroness Butler-Sloss]

I wonder whether the Minister could answer a point that he has not yet answered, which has been made by several people. There is a perception that if the Lord Chancellor is on the panel, the appointment will be politicised. For those who do not know the process but see that the Lord Chancellor has been one of those who has appointed the Lord Chief Justice, there will be a perception, certainly among lawyers and much more widely, that the Lord Chancellor has had a very large part to play in making that person the Lord Chief Justice and that it would be the sort of person who would suit him.

[Lord McNally]

I was about to come to the interventions of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Prashar. I do not think that my noble friend Lady Falkner got it wrong at all, despite her being bullied by the noble and learned Lord, Lord Falconer.

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[Lord McNally]

There is no deception; I have nothing up my sleeve.

[Baroness Butler-Sloss]

I am sorry—this is only my second intervention but it is my last one. Something as important as this should not be put in a regulation. Why can there not be a government amendment on Report so that we know where the Government stand?

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[Baroness Jay of Paddington]

My Lords, I do not accept my noble friend’s comments. As the noble Lords, Lord Hart of Chilton and Lord Pannick, said, we went into this in some detail in the Constitution Committee. For all the reasons advanced very eloquently by the noble Lord, Lord Pannick, I support the amendment, particularly because of the potential for increasing diversity both in the Supreme Court and, indeed, further down. Both noble Lords have expressed the potential for opening up more opportunities for people who have come through what is described as the non-conventional career path to reach the top of the profession. I—and many members of the Committee —have a personal interest in the concept that 70 is the new 50, so 75 should be the new 55.

[Baroness Butler-Sloss]

My Lords, if 70 had been the retirement age for Supreme Court judges, particularly the judges in the House of Lords, we would have lost Lord Bingham before he even got to the House of Lords. We would have lost the noble and learned Lord, Lord Phillips, the present president of the Supreme Court, who goes at 75. He is almost the last of those who are entitled to stay until 75. The first solicitor to get to the Supreme Court, who was of enormous value to it, left after 18 months because he was caught by being aged 70. He was as valuable as the noble and learned Lord, Lord Phillips, but he went at 70.

The Supreme Court is losing people who cannot even get there, or who get there for 18 months if, as has already been said, we allow time for people to get through the High Court and the Court of Appeal to the Supreme Court. I think only two judges have gone straight through and one judge came straight from the Bar. Normal process means that we are losing people who are extremely valuable. This has been brought up in Question Time on a number of occasions and the Government really should be looking at it. The previous Government were asked to look at it but, if I may say so, they pushed it to one side. It would be very good if this Government would take it up.

[Baroness Bottomley of Nettlestone]

This has been a most exhilarating debate. I hope that the Minister will be able to use this experience to talk to other colleagues in government about why, for example, a non-executive director on a board has to have annual re-election once over 70. Recently, an Oxbridge college appointed a principal who is 72 and the articles of association had to be changed. I declare an interest because the late Lord Bingham’s son is the best person who works for me in my professional activity so I am, of course, brainwashed in this regard. I never thought of the Lords as pioneers of radical equality measures but I feel that this debate has great potential for professional groups across the economy and society, and certainly across government.

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[Baroness Neuberger]

My Lords, perhaps I may add to the debate as another non-lawyer. Indeed, I totally agree with the noble Lord, Lord Deben, and I very much hope that the Government will take this on board. I know that the Minister has himself been involved in the judicial diversity task force, of which the Lord Chief Justice and the Lord Chancellor are in fact members. One of the criticisms that the Advisory Panel on Judicial Diversity has made since it reported two years ago is that progress by that task force has in fact been remarkably slow. Although it has met, not a great deal has happened. I know that the Minister feels much the same. It therefore seems to me all the more important that there be a statutory duty on the Lord Chancellor and the Lord Chief Justice, as well as on the Judicial Appointments Commission, to promote diversity. I really hope that the Government will take that on board.

[Baroness Butler-Sloss]

As a former judge I very strongly support the amendment by the noble Lord, Lord Pannick. I would particularly like to endorse what the noble Lord, Lord Deben, said, with which I entirely agree. It is a very good thing when we get some non-lawyers reminding us, but he can be assured that former senior judges support him on this.

[Baroness Jay of Paddington]

My Lords, like the noble and learned Lord, Lord Woolf, I rise really for the sake of the record and because my name is on this amendment. As the noble Lord, Lord Pannick, said in introducing the amendment, this was one of the very strong recommendations that the Constitution Committee made in its report on judicial appointments. The Minister has referred to his kindness in coming once again to speak to the Constitution Committee between Second Reading and Committee. He gave a very strong indication —and I do not think I say anything inappropriate—that he was favourably disposed to matters which we suggested counted as leadership matters in the question of diversity. He will remember the remarks he made on Monday when we spoke again about gesture politics in relation to another amendment, where he said that this was not about gesture politics, but about leadership and political leadership. I hope he will be consistent in his reply on this amendment.

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[Baroness Prashar]

I, too, support the amendment. The JAC wrote to the then Lord Chancellor about this in 2008. If we are committed to promoting diversity, it is vital that some movement takes place. There has been no progress on this over the past few years. If the responsibility was taken seriously by the Lord Chancellor, there would have been some movement.

[Baroness Butler-Sloss]

My Lords, I, too, support the amendment. There is an overlooked pool of potential future judges—or of what used to be called chairmen of tribunals, who are now judges. It is time that that group in government service of one form or another was seen as a potential. The point made by the noble Lord, Lord Pannick, about the numbers of both women and ethnic minorities is significant. I support the amendment.

[Lord McNally]

My Lords, I am very grateful for the amendment, because it allows me to clarify an important area: those who work in government legal services, the Crown Prosecution Service and other government legal offices. The intervention of the noble Lord, Lord Pannick, is extremely helpful, because it puts on record what a rich seam there is to be mined in those public appointments, and counterpoints the point that I have made several times from this Dispatch Box: that the public service has managed to make far more progress in promoting diversity over the past decades than has the private. We may learn lessons from that.

The Government are keen that members of the employed legal professions should take up judicial roles for which they are eligible, as like noble Lords, we are of the view that this could be a useful route to increasing diversity as well as ensuring that the Government can attract the best lawyers.

However, it has been the policy of successive Lord Chancellors that Crown Prosecution Service and other government lawyers when holding judicial office do not sit on cases involving their department. For CPS lawyers, this means that they cannot sit as recorders in the criminal courts, as the overwhelming majority of cases are prosecuted by the CPS.

Under the previous Administration, in 2003 the restrictions on applications by government lawyers were relaxed partially, and CPS lawyers became eligible for appointment as deputy district judges in magistrates’ courts. However, this was still on the basis that they did not sit on CPS-prosecuted cases, and therefore few roles are available.

The policy is based on the need to comply with Article 6 of the European Convention on Human Rights, which provides that litigants are entitled to be heard in front of an independent and impartial tribunal. Given those constraints, we need to think more creatively around the concept of a judicial career and how experience in one area can support subsequent appointment to judicial office in another area.

Opportunities are available for government lawyers to apply for judicial office. The published Judicial Appointments Commission programme for 2012-13 includes more than 300 vacancies for fee-paid office, which would be open to government lawyers to apply for. It is therefore important to communicate those opportunities available to government lawyers and to encourage them to take up judicial roles for which they are eligible—not least as this could be another useful route to increase diversity in the judiciary.

I am personally committed to playing a part in raising awareness of these opportunities. I recently met the Treasury Solicitor to discuss the best way to communicate them. I am also happy to consider any suggestions for changes to the current restrictions that apply to government lawyers to see whether we can go any further than the current practice—without, of course, infringing the rights to an independent and fair trial. When I met the Treasury Solicitor, I said that I was willing to write articles, go to seminars, or whatever, to raise the profile and awareness of those opportunities. As this is a probing amendment, I hope that the noble and learned Lord will believe that we are responding in this area and withdraw it.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Monday 25th June 2012 Lords Chamber

It is for this reason that I move the amendment, which is intended to ensure that the Government keep all these matters under review, together with all those affected by the provisions in the new legislation—within the service, those who use the service and those who practise in the service—from the judiciary to the individual applicant, appellant or litigant. In that way, the Government’s aspirations can be better fulfilled. It is necessary to respond to changing circumstances, to be as economical as possible and, where possible, to reduce costs through better case-management and the like. However, it cannot be taken for granted that simply legislating in this way to create these new structures will achieve that objective. Therefore, the amendment is intended to create a framework within which the whole structure can be kept under comprehensive and regular review. I beg to move.

[Baroness Butler-Sloss]

My Lords, I am very relieved that the noble Lord, Lord Beecham, does not oppose the government proposal for a single family court. I agree to a considerable extent with what he said.

To take Amendment 68A, the single family court will implode the family proceedings court at the magistrates’ level. The family proceedings court already takes a considerable burden of difficult family cases, both care cases and private law cases. The magistrates find that sometimes in the family proceedings court they have to sit for several consecutive days. In private law cases, families at odds with each other find it almost impossible to have their case dealt with to their satisfaction at one hearing. As a former president of the Family Division, my experience was that cases returned with monotonous regularity. I would be astonished if they returned with any less regularity to the magistrates’ court, as they deal with a lot of quite difficult private law cases.

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[Baroness Jay of Paddington]

My Lords, the Minister will undoubtedly reply to the broad-brush criticisms that the noble Lord, Lord Goodhart, has raised. I will just say, on one of his points, that the noble Lord, Lord McNally, and the Secretary of State, Mr Clarke, have been very kind in attending to the Constitution Committee since Second Reading. We have specifically discussed Clause 18 and Schedule 12 with them both, and I must put on record that their dialogue with the Constitution Committee at least has been productive.

I briefly return to the amendment of the noble and learned Lord, Lord Lloyd. Of course, I defer to him, his judicial colleagues and other noble Lords in their experience in the courts, but I would pick up the point made by the noble Baroness, Lady Falkner, about them addressing the issue of part-time working—or as I would more easily describe it, flexible working—in a perhaps somewhat narrow and therefore slightly more difficult way. The noble and learned Lords, Lord Woolf and Lord Carswell, gave evidence to the Constitution Committee during our inquiry into this matter. They said many of the things that they have said tonight and many more things as well. I hear precisely the issues that have been raised about the practical problems. As the debate has widened slightly into the general issue of diversity and appointments generally to the judiciary—which was why I asked my earlier questions to the noble and learned Lord, Lord Lloyd, about which particular aspect he was concerned with—it may be of interest to the Committee if I quote from the Lord Chief Justice. In evidence to us, he said that,

“we should be able to organise the sitting patterns for female High Court judges or male High Court judges who have caring responsibilities, so that during, for example, half term”—

which was just one example they gave—

“they can be at home ... I think those sorts of very small changes … will help”.

I want the Committee to understand that there is not a uniformity of views among the senior judiciary, both past and present, about the absolute impossibility of trying to be more flexible in this way.

I also say, with some deference and temerity, that I wonder whether noble Lords and senior judges are perhaps looking exclusively at their profession and not looking more broadly at the ways in which other professions have adapted to flexible working over the past decade. I raised very briefly at Second Reading the example of the medical profession, which has had very entrenched working practices at the senior level, particularly in the surgical specialty, and has now adopted flexible working in a way that met with many of the same problems in theory as have been raised this evening and on other occasions about flexible working within the judiciary. The situation is, of course, different but some of the issues in principle were the same. The adaptation has worked, so that senior members of the medical profession are now much more broadly spread between the genders and there is a much greater sense of genuine diversity.

In this instance, perhaps I may refer the Committee to the evidence of the chairman of the Judicial Appointments Commission, who said to the Constitution Committee:

“This is the first profession that I have touched in my working life where there is not easy access to flexible working arrangements for senior positions. Having salaried part-time working in the High Court would be transformational”.

As I say, I speak with some deference on these matters, but it is worth the Committee hearing the views both of the chairman of the Judicial Appointments Commission and the Lord Chief Justice.

[Baroness Butler-Sloss]

My Lords, I am sorry that yet another former senior judge is speaking. I recognise entirely the advantages of flexibility, but in this area there is a limit, and I want to say a few words about it. As a woman, I strongly support diversity on the Bench, particularly having been one of the earliest women judges. I also support encouraging those who leave either side of the legal profession in their thirties and forties for family reasons, very often to bring up young children, so that they can come back and sit on the Bench at a suitable level. To sit part time as a district judge or the judge of a tribunal is an excellent way of wooing back those who we would otherwise lose, to the detriment of the administration of justice. They are an obvious pool for promotion to more senior judicial posts. However, the point comes on the ladder to senior positions when a part-time judge inevitably will be less useful, and there would be some serious objections and disadvantages to part-time sitting.

I can see that it could be difficult for many centres where circuit judges try long and difficult cases, but it would be even more difficult for High Court judges and above. Perhaps I may give two examples. High Court judges, of which I was one for several years, often try—as one would expect—long and complicated cases that last for weeks, months or, occasionally, years. Listing officers would have real difficulties in listing cases if there were part-time judges. Further, as the noble Lord, Lord Thomas of Gresford, has already pointed out, High Court judges go out on circuit for six weeks or sometimes longer. They are a long way from home and return only at the weekends. As a High Court judge I went out on circuit and I can tell noble Lords that, as the mother of a teenager and two younger children, doing so was not easy. However, it is manageable. I felt that otherwise I could not be a High Court judge.

This leads to the second disadvantage. If there are part-time judges at the highest levels, the full-time judges in heavy cases would be likely to bear the heavier burdens. They would try the longer cases. That is because if there is to be any flexibility at all, and a case is going to last for six to nine months, it is unlikely that someone who wants to sit part time would actually be able to take it. That is particularly the case when going on circuit and there is a long case that may take the whole term. How on earth is someone who would prefer to work part time going to leave the family to take a long case? That would be certain to produce a certain degree of resentment among colleagues, who would be expected to take those cases because the part-time judge really could not take on the burden.

In the Court of Appeal, where I also sat, and in particular the Supreme Court, where I did not sit—and they are the purpose of these amendments—the idea of part-time sitting seems very difficult to achieve. How would it work in practice? However, most judges in the Court of Appeal and, perhaps I may say, even more so in the Supreme Court, are older. If candidates wanted the job at that stage of their lives, they would be able to give a full-time commitment, having given a part-time commitment when they were younger and had children to care for. I have to say that by the time I was in the Court of Appeal my children could manage on their own and I had to go home and worry less often about what they were doing—slightly less often since, as a mother, one does not ever stop worrying about one’s children. I cannot understand, therefore, why those who start out as part-time judges at a lower level and who are clearly high performers and ought to rise up the ladder, as I went up having started as a district judge, cannot, when they are older, take on the full-time commitment that they were unable to bear when they were younger and had responsibilities for children.

I have to say also that if these clauses are intended as a gesture to underline the undoubted importance of diversity, and are not intended to be reapplied in the higher courts, I would not be too worried. If, however, as I fear, the Judicial Appointments Commission feels that it is its duty to try to apply these clauses when and if they become law, feeling that it will be criticised if it does not do so, that will be very difficult to achieve. If it is achieved by the commission, I believe that it would create major problems. We have to think again about this. I really do not understand why older women, having got over the problems that required them to work part time, could not take on a full-time commitment in the Court of Appeal and the Supreme Court.

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[Lord Deben]

My Lords, it always surprises people that non-lawyers such as me sit through long periods of Bills such as this one. It is mainly because some of us think that no profession should be left to make its own decisions about its own set-up. Therefore, I hope the Committee will allow me to say just two things.

First, I entirely agree with the noble and learned Lord, Lord Falconer. It is necessary for the protection of judges that someone should make an interjection of this sort. Secondly, the noble and learned Lord who argued against the question of equal merit ought to learn a lesson from the rest of his life. I know perfectly well what I have to do when I choose people to work for me in my businesses. I often get a large number of people of similar merit. Then I get it down to people of equal merit. What do I say to myself? I say, “I can’t run a business in which I have too many women and too few men. I can’t run a business in which I have no gays. I can’t run a business if I don’t have some kind of different ethnic minority representation when I could”. It is a very simple thing and I am a bit tired, if I may say so, of the legal profession talking as though it was a unique operation—as though it somehow has nothing to do with how the rest of us work.

That is why I sit through these debates from time to time—to say occasionally, “For goodness’ sake, realise that you are in a world that operates in a particular way. When you talk about representation, it is about being sensible of and sensitive to the way the world works”. I found the previous discussion bewildering. It is manifestly true that you often find people who are of equal but different merit. The issue then is about what mix works, given that you have 25 other people of equal but different merit. How do you fit that person in? Anybody who has chosen people for a team or run anything finds that to be true. I cannot understand why judges are supposed to be different or, in particular, why they become more different the more senior they become. I find that extremely odd.

Therefore, I ask the Committee to learn a lesson from those of us who are not lawyers. The nature of our legal system is accepted partly because people feel that, in general, the way in which it operates has some parallels with how everything else operates. If it operates in a totally different way, frankly, we have got it wrong. Let us try, in those areas where parallels are obvious, to make the system parallel. Where it is not parallel, we should be able to defend why it is unique. In neither of the cases that we have talked about in this curious group of amendments is it possible to claim uniqueness. In both cases, it is better to do what the noble and learned Lord, Lord Falconer, suggested, and to disagree with the well argued but fallacious point made by the noble and learned Lord, Lord Lloyd.

[Baroness Butler-Sloss]

My Lords, I do not dare to follow what the noble Lord has just said. I want to make a slightly different point, which is to agree very much with the noble and learned Lords, Lord Falconer and Lord Woolf. There needs to be somebody in Parliament who speaks for the judges. That is probably the most important point that is being made and the major reason why the Lord Chief Justice should not have the final say.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Wednesday 25th April 2012 Lords Chamber

[Lord Howarth of Newport]

That may be the view of the noble Lord and his noble friend. It is not the view of the noble Lord, Lord Pannick, and those of us who supported him on two occasions in inviting the other place to think again about this matter.

[Baroness Butler-Sloss]

My Lords, I strongly support the noble Lord, Lord Pannick. It is manifestly absurd—to me, at least, and it may be to other Members of this House—that this particular amendment should be treated as having anything to do with financial privilege. I have always been very hesitant to vote against the Government at the ping-pong stage, as I have always thought that they should get their business through. I voted with the noble Lord, Lord Pannick, on Monday because of the financial privilege point, and for that reason I say today that, whatever else has been said, I find it inconceivable that the Minister in the other place should again have called it financial privilege.

[Lord Mackay of Clashfern]

Perhaps it is worth pointing out that when this amendment was called, the Speaker of the House of Commons intimated that financial privilege was involved in the amendment. The reason for that is not explained as part of House of Commons procedure. Your Lordships know that I have had some difficulty in the past with references to this feature in relation to other Bills. The fact is that it is not for the Government, at the beginning, to mention this point. It is taken by the Speaker on behalf of Parliament and on behalf of the House of Commons. I have no doubt that, as Speaker Martin told us the last time, he does so on advice from the Clerk of the House of Commons. The Government then proceed from there. They could, if they wished, ask the House of Commons to support the amendment, notwithstanding that it involved financial privilege, but the basic ruling that financial privilege is involved seems to come from the Clerks of the House of Commons. I confess that their way of dealing with the matter is not something that I fully understand.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Thomas of Gresford]

It says in terms that it must be in accordance with this part. As the Minister has explained, the Bill as drafted says what is in scope. The Access to Justice Act 1999 set out what was not in scope.

[Baroness Butler-Sloss]

I am no expert in administrative law. However, my recollection is that that requires leave of the judge. If it is as spurious a case as the noble Lord has suggested, I would have thought that it would be likely to be rejected and that very little legal aid, if any, would be involved.

[Lord Thomas of Gresford]

Why should one run that risk? Why should one have applications for judicial review being made based on the amendment as currently drafted? This adds nothing to the Bill. All it does is open an avenue for satellite litigation which should not be permitted.