Crime and Courts Bill [HL]

Debate between Baroness Butler-Sloss and Baroness Jay of Paddington

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Crime and Courts Bill [HL]

Debate between Baroness Butler-Sloss and Baroness Jay of Paddington

Monday 25th June 2012 Lords Chamber

[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.