Crime and Courts Bill [HL]

Baroness Jay of Paddington Excerpts

Monday 28th May 2012 Lords Chamber

[Baroness Jay of Paddington]

My Lords, it is a pleasure to follow the noble and learned Lord. He is right to predict that I will focus my contribution on Part 2 of the Bill, specifically those clauses and schedules that deal with judicial appointments.

As the noble and learned Lord, Lord Mackay, said, the Constitution Committee—which I have the privilege of chairing for another parliamentary Session—has just issued a major report on this subject, following a lengthy inquiry last year that lasted several months. During that inquiry, we took evidence from a wide range of serving and retired judges, lawyers, academics, politicians involved in the process of selection, and the Judicial Appointments Commission. Over this period, the committee has also had a very productive dialogue with the Government, and both the Secretary of State, Mr Clarke, and the noble Lord, Lord McNally, gave oral evidence to us.

The Government took considerable notice of the Constitution Committee’s recommendations during their formal consultation on the Bill and last week responded in detail to the report, which the Secretary of State described as a valuable and timely contribution to the debate. The committee is grateful for this response and welcomes the fact that so many of our recommendations appear in the Bill before your Lordships today.

The essential premise of our report was to ensure that the judicial appointments process remains independent, open and transparent—as has been mentioned already today—and produces a judiciary that reflects the society it judges. We were concerned that even in 2011 only 5% of judges were from minority groups and only 22% were women. The Minister has rightly said that this is an improvement but we felt that it needed to go further. Frankly, the judge who inhabits a courtroom in England and Wales is still stereotypically a white male from a fairly narrow social background.

The Constitution Committee felt that it was enormously important to emphasise the need for faster moves towards greater diversity in future appointments. Apart from the difference that this would make to the profession, this is vital to maintain the public’s confidence in the judiciary. I therefore join other noble Lords who have spoken this afternoon in very much welcoming the Government’s decision to seek to introduce flexible working in the higher courts. As the Minister has said, the provisions of Schedule 12 make possible for the first time the appointment of judges at the highest level—I emphasise, at the highest level—on a part-time, salaried basis. As the Constitution Committee noted in its report, the introduction of flexible working of this nature must help to increase the number of women in the higher courts, as has happened successfully in other professions such as medicine, for example. It was interesting that the chairman of the Judicial Appointments Commission reflected the views of many of our witnesses when he told us:

“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 it, he said, “would be transformational”. We have to hope that he is right, in spite of some of the practical problems that have rightly been raised by the noble and learned Baroness, Lady Butler-Sloss.

Schedule 12 also introduces the so-called tipping or tie-breaker provision for judicial appointments to increase diversity within the judiciary. At present, the tie-breaker provisions, which are explicit in the Equality Act 2010—we must remember that that Act has not always been uncontroversial—and enable recruiters to prefer underrepresented candidates when candidates are judged equal on merit, do not apply to appointments to judicial office.

We may all agree, as has already been mentioned this afternoon, that this situation may arise relatively rarely but the Constitution Committee felt strongly that, although judicial appointments in England and Wales must continue to be made on merit, they should also continue to be based on principles that enable the adoption of the tie-breaker provision in the equality legislation. I hope that now the Bill has done this, it will not only provide a strong legal statement about the importance of diversity but, more directly, will lead to changing practice without undermining—I emphasise this—the essential merit principle.

However, it is disappointing that the Government have not placed the Lord Chancellor and the Lord Chief Justice under a statutory duty to have regard to the need to encourage diversity in the pool of applicants for judicial posts in the same way as is now required for the Judicial Appointments Commission. Such a duty, which the Constitution Committee recommended, would help to ensure that the Lord Chancellor and the Lord Chief Justice properly recognise and fulfil their leadership roles in promoting judicial diversity. Improvements in diversity will occur only with decisive and persistent leadership. Although I do not doubt the commitment of the present holders of these offices, a statutory duty would ensure a real and lasting commitment to change in this field. It would also enable those two senior judges to account for their actions in encouraging diversity. The Government’s response to this proposal by the Constitution Committee is sparse in its reasoning and I suspect that we may return to the question of a statutory duty to promote diversity later in the Bill.

The Government have also said, again disappointingly, that they are not minded to relax the operational restrictions on government-employed lawyers applying to become judges. I suggest that this is probably an unnecessary restriction. There is after all a clear public interest in ensuring that high-quality lawyers are not discouraged from entering the government service just because they may now never be able to progress later to the judiciary. It is also clear from the personnel data about government lawyers that they are, as a class, more diverse than other branches of the legal profession, so it seems logical that opening up their judicial career prospects would be likely to improve the general diversity of the judges.

Overall, I hope that the Government will, as their response to the Select Committee report suggests, give greater weight to the work of their own judicial diversity task force. Evidence to us from the previous advisory panel suggested that some earlier proposals had been sidelined. The noble Baroness, Lady Neuberger, who I am glad is speaking today and who chaired the panel which reported in 2010, told us that,

“considerably greater progress could have been made on most of what we said”,

and that,

“it did not require huge amounts of money, which has been the excuse for why some of it has not happened”.

Significantly, its proposal to introduce a formal appraisal system for judges, which the Constitution Committee also recommends, has not been accepted by Ministers.

The Bill makes a number of alterations to the structure of a judicial appointments process. As the Minister has already said, the Lord Chancellor’s powers to appoint judges below the level of the High Court are to be transferred to the Lord Chief Justice. Similarly, the Lord Chancellor’s role in appointing judicial members of tribunals is to be transferred to the Senior President of Tribunals. Both these changes are welcome, as they will promote the independence of the judiciary from the Executive and, I suspect, increase public confidence in the appointments process by more accurately reflecting the realities of judicial appointments at a lower level. I also welcome the decision to end the anomalous position whereby the President of the Supreme Court chairs the panel which appoints his successor. This was certainly something that the Constitution Committee felt was important.

There are other structural changes which are in the Bill and give cause for concern. In terms of constitutional principle, the most significant is the decision to allow the Lord Chancellor to sit as a member of the selection panels for the Lord Chief Justice and President of the Supreme Court. I have two concerns about this. First, in spite of what the Minister said, the inclusion of the Lord Chancellor on the selection panel risks the politicisation of the process, which would clearly run contrary to the principles behind it. Secondly, the Government propose to balance the inclusion of the Lord Chancellor on these selection panels with the removal of his current power to reject the decision of those panels. It would clearly be damaging for the fairness of the process if a member of the panel also had a veto over it. However, it raises the prospect, at least in theory, of the Lord Chancellor being outvoted on the panel and thus finding himself faced with a Lord Chief Justice or President of the Supreme Court with whom the Executive did not feel able to work. The Government may need to think again about this proposal, to which I am sure we will return in Committee.

Finally, I note that the Government have rejected the Constitution Committee’s suggestion to create a differential retirement age for judges. We propose 75 for the Supreme Court and Court of Appeal justices, and 70 for all the others. The reason behind this proposal is that we thought that the change would ensure that while the most senior judges, where proven judicial quality and experience are at a premium, would continue to work to the later age, more posts would become available earlier at the lower levels. The evidence to us suggested that expanding opportunities in lower tiers of the judiciary would encourage diversity, particularly those who did not follow the traditional career paths. This may well be another area that we return to later in the Bill.

I am very grateful to the Minister for agreeing to discuss the detail of the Bill further with the Constitution Committee before the House begins consideration in Committee. This once again demonstrates the great importance of your Lordships’ Select Committees in scrutinising and trying to improve legislation while a Bill is making progress through the House but away from the debate on the Floor. It is a very important part of our role as a Select Committee.

As I have already mentioned to the Minister, I apologise to him and the House as I may not be able to be here when he gives his wind-up speech. Unfortunately, I had already agreed to an evening engagement which I could not postpone at the last minute when the date of this debate was agreed. Looking at the long list of very distinguished speakers, I suspect we may not reach the end of it before I have to leave. However, I have apologised to the Minister and I apologise again to the House. I look forward very much to the next stages of this extremely important Bill.