Crime and Courts Bill [HL]

Baroness Neuberger Excerpts

Monday 28th May 2012 Lords Chamber

[Baroness Neuberger]

My Lords, I shall confine my remarks to Part 2 of the Bill. I was honoured to be invited to chair the advisory panel on judicial diversity by the then Lord Chancellor, Jack Straw, and to continue its work under the present Lord Chancellor, Ken Clarke. We made a number of recommendations and were absolutely delighted and not a little surprised to find that they were accepted by the Government in their entirety. For that reason, I wish to congratulate the Government, particularly the noble Lord, Lord McNally, who I know has thrown his personal enthusiasm behind all this, on what is proposed in the Bill so far.

In these provisions we have the beginning of a way forward. There is a real need for the judiciary to be more reflective of the community it serves, as the noble and learned Lord, Lord Mackay of Clashfern, has said. As Lady Hale, the single female member of our Supreme Court, put it in evidence to the Constitution Committee:

“A woman litigant should be able to go into the Court and see more than one person who shares at least some of her experience. I should not stick out like a bad tooth, as I do at present”.

However, let us be clear. We did not think back in 2010 when we reported, and nor do we now, that increasing diversity in the judiciary would be a speedy process. Nor did we think that it was only for the Government to change. Legal professionals, the judiciary and some of our senior law firms will also need to take ownership of these issues. We were encouraged by the positive messages coming from some of the most senior judges in the land, but enabling judges in the most senior positions to work flexibly is only a beginning. Of course we need the legislation to make it possible but even more important, as the Minister said at the beginning of this debate, is a change of culture within much of the senior judiciary and beyond. They need to begin to think differently about how people might work and realise that things do not have to be done just as they always have been.

We know that flexible working is possible and that provisions have been made for sick and widowed judges to work more flexibly on an ad hominem basis in the past. If it is possible in these circumstances, it is possible and—for diversity and other reasons—desirable to do it more widely. So we applaud the measures in Schedule 12. We like the idea of,

“no more than the equivalent of 12 full-time judges of the Supreme Court, rather than exactly 12 judges”.

This provision, and the fact that it is being made, sends important messages to women with children, anyone with caring responsibilities and others for whom an absolutely full-time role might be difficult.

We also welcome the so-called tipping point provision in Schedule 12, which we also recommended. Clearly, these changes should not and would not change the overriding principle of appointments based on merit, as the noble and learned Baroness, Lady Butler-Sloss, has said. However, they should encourage clear career progression—a judicial career, rather than a career judiciary—and applications from a wider talent pool than at present

Let us be clear. We have a wonderful judiciary in this country. It is highly talented, highly independent, not always beloved of Government—nor should it be—and of great merit. None of this desire to increase diversity is in any way a personal criticism of the present judiciary. Perhaps I should declare an interest here as sister-in-law of the Master of the Rolls. However, he is on record as saying to the Constitution Committee:

“The main problem is the cast of mind. Most of us think of a judge as a white, probably public school, man. We have all got that problem”.

I agree absolutely. Even that does not begin to tackle something even more complicated, which is the nature of the selectors if we are not careful. When I gave evidence to the House of Lords Constitution Committee, I said:

“We all have an inclination to appoint people who are like us”.

I spoke from experience.

“I certainly found as Chief Executive of the King’s Fund that an astonishingly large number of middle-class, white, rather bossy women were being appointed”.

In jest I added:

“I cannot think why that should be”.

Of course, I can think exactly why that is, and I am eternally grateful to David Bewers and others at the King’s Fund who pointed out how we were appointing people and made sterling efforts to broaden and widen our pool. However, appointing people in our own image is a natural human reaction. That is why, where the judiciary plays an even greater constitutional role than it did in the past, it is so important that the judges should not be always in the majority—or arguably ever in the majority—in appointing people to become part of their own number. Like Lord Justice Etherton in his evidence to the Constitution Committee, I think that,

“the judges cannot be purely a self-appointing body”.

I am delighted that the most senior judges will not in future be involved in the appointment of their own successors. Having an independent lay person as chair of the selection panels for both the Lord Chief Justice and the President of the UK Supreme Court, rather than a judge, is a very good thing. I am also pleased to see proposals in the Bill to allow for easier transfer between the tribunals and the higher courts, which was one of our main recommendations for increasing diversity, given that the tribunals are by and large infinitely more diverse in their judicial membership than the other courts.

However, and now speaking personally and not as part of the advisory panel, I do not support the measures to give the Lord Chancellor the right to sit as a member of an appointing panel of the Judicial Appointments Commission. The idea of the Lord Chancellor sitting on the selection committee for the appointment of the Lord Chief Justice or the President of the UK Supreme Court worries me greatly. I have no doubt that this Lord Chancellor would be scrupulously fair and bend over backwards to do the right thing but he will not be in post for ever and he cannot guarantee his successors.

There is a constitutional issue here. The principle of judicial independence is an important one and that means that neither the Lord Chancellor nor Parliament should be given enhanced powers to decide who becomes a judge. That means that lay involvement of the highest calibre and the greatest independence is essential in the appointments process. That puts a huge burden on the Judicial Appointments Commission. It is early years for the JAC and I congratulate the noble Baroness, Lady Prashar, on all the work she has done to enhance diversity in her time, as has her successor, Chris Stevens. My panel was delighted to the see changes in the specific merit criterion about dealing fairly that were made recently by the JAC. One of the changes was to put in an awareness of the diversity of the communities that the courts and tribunals serve and a commitment to justice, independence, public service and fair treatment. We wait with interest to see how people applying to become judges measure themselves against those criteria in the coming few years.

The Constitution Committee argued hard that merit should remain the sole criterion for appointment. We also held that view strongly. The Constitution Committee did not consider merit to be a narrow concept based solely on intellectual capacity or high-quality advocacy. It said:

“We refute any notion that those from under-represented groups make less worthy candidates or that a more diverse judiciary would undermine the quality of our judges”.

We absolutely agreed.

Therefore, we are left with much to do. The advisory panel regarded it as essential to introduce appraisal for the judiciary on diversity grounds, having been told by many more junior judges and possible candidates for judicial office what a difference that would make. The Constitution Committee, as the noble Baroness, Lady Jay, has said, absolutely agreed and supported that. We know there are financial issues here, but we believe that it is possible to have a less than gold-plated appraisal system, fully owned by the judiciary itself—possibly even 360-degree appraisal to allow judges to feel confidence in their performance—which is particularly important for those who do not come from the most conventional backgrounds and legal experience. Benchmarks in the appointment of judges should be set and monitored, and the judicial diversity taskforce should own that benchmarking, examine it and take action regularly. Indeed, today’s Bill is evidence of the Government’s willingness to take these issues seriously. Sustained effort is also needed to improve things, and that needs to be made jointly by the judiciary, the professions and the Government.

I ask the Minister to assure me that the judicial diversity task force will continue to own this field and will benchmark and take action as necessary, with full co-operation with all those who need to be involved. I ask him also to say something about when funding might be found to allow for appraisal in the judiciary.

The noble Baroness, Lady Meacher, the chair of the APPG on Drug Policy Reform of which I am also a member, had planned to speak today but has had to attend meetings in Brussels. She asked me to say that she will contribute on that matter at later stages of the Bill, as I imagine will people on all sides of the House.