Crime and Courts Bill [HL]

Debate between Baroness Falkner of Margravine and Baroness Jay of Paddington

Monday 25th June 2012 Lords Chamber

[Baroness Falkner of Margravine]

My Lords, I will comment briefly on this point. In his closing remarks the noble and learned Lord, Lord Lloyd of Berwick, asked an interesting question that is posed frequently: where there is a tie-break, as I would refer to it, what should be done if there are two candidates of supposedly equal merit, one of whom is a woman and the other, for example, is from an ethic minority? I note that the report of the Constitution Committee gives a lot of assistance in how we should define merit but makes the point that, certainly in large-scale selection processes, there could conceivably be candidates who end up in a tie-break: in other words, who are assessed to be of equal merit.

It would be quite straightforward to apply the test in those circumstances. You would look to see which group is more underrepresented than the other group and, in the case where there are two from underrepresented groups, appoint the one that was not to be found there. That would be fairly straightforward. With more senior appointments, it is entirely conceivable that it would be much clearer. We have heard that there is one female and no ethnic minority member of the current Supreme Court. In that case, it would be fairly straightforward, if the candidates were tied and came out equally in an assessment, you would go for the ethnic minority candidate. Although you would want to increase the gender diversity, on such an occasion, you would need to increase the diversity overall.

I also make the point to the noble and learned Lord that blatantly nobody is seeking to have the senior judiciary reflect the people they serve, because the people they serve on the whole are there, particularly in criminal cases, because they have done wrong. Nobody is suggesting that. However, the Constitution Committee’s report makes clear, as do a lot of other reports, that in senior positions in life it is terribly important for an inclusive society to have people who are representative of different strands of society as a whole. I rest my case there.

[Baroness Jay of Paddington]

My Lords, I will just make one rather straightforward point. I think the noble and learned Lord, Lord Lloyd of Berwick, said in relation to the previous amendment that he felt that this was simply gesture politics and somehow the phrase that we used in our report, which the noble Baroness, Lady Falkner, has now repeated, about sending out “a strong signal” by adopting this part of the Equality Act was simply inappropriate in legislative terms. I only say that the experience that we heard, particularly from abroad, about the way in which change had been brought about in judicial systems in other countries—I would cite particularly Canada—was that it came from very strong leadership from the top. That may be either in practical terms or, quite importantly, in terms of what the noble and learned Lord, Lord Lloyd, if I may say so, refers to, in a slightly deprecating way, as gestures but which I regard as importantly symbolic of a change of attitude at the top. In these terms, that means both ministerial and judicial and therefore conveys what I hope would be a change that would percolate down through the system.