Human Rights and Civil Liberties
Lord Carswell Excerpts(9 years, 5 months ago)
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Lord Carswell (CB)
My Lords, I have to confess to a degree of hesitation about entering into a debate on the topic of human rights with the noble Lord, Lord Lester of Herne Hill, whose knowledge of the subject is encyclopaedic and whose experience is unrivalled. However, I have a point to put before your Lordships and a suggestion to make, therefore I shall dare to be a Daniel.
Sir John Major said some time ago, echoing Disraeli, that:
“We have no need of a Bill of Rights, because we have freedom”.
There has been a great deal of discussion, both before your Lordships and elsewhere, about the Human Rights Act, the Convention for the Protection of Human Rights and Fundamental Freedoms—to give it its full and proper title—and the possibility of substituting for it a British Bill of Rights. My thesis is that there is a simple, straightforward and pragmatic way forward, which will avoid many of the difficulties, which I shall outline very briefly.
I start by saying straight out that I have no hesitation in saying that the convention was in itself an excellent idea. It was promoted by statesmen of great standing imbued with the desire to preserve liberty against the type of oppression about which and against which we had fought a long and testing war. It was a worthy attempt to encapsulate the basic standards for the relations between states and their citizens. It is worth while just sitting down and reading straight through Articles 1 to 18 of the convention, which confer the rights. They set out the rights and freedoms in terms which enshrine principles that should be fully acceptable to all civilised people.
In my view, the real trouble has arisen from the interpretation and application of the wording of those principles. I need not dwell on the well-publicised results, which have caused justifiable concerns to sensible citizens and have been well rehearsed in the press—somewhat noisily at times. So I shall not go on about cats or about people who choose to think that a monitoring tag is an explosive device designed to blow them up. Much of the problem stems from the approach of the European Court of Human Rights in Strasbourg. It has certain similarities to what is called the acquis communautaire of the other European institutions. There has been a ratcheting and one-way process, ever expanding the breadth of the meaning of the convention’s articles and, your Lordships may note, expanding with it, too, the power and reach of the court. The justification of this has been the interpretation of the convention, resorted to by the court, as a “living instrument”.
I have to say with a degree of regret that our domestic courts have in many cases showed themselves perhaps rather too keen to adopt a similar approach. That has been compounded by what I believe has been a mistaken process of following the Strasbourg decisions and pronouncements rather too literally. I have to hold my hand up and plead guilty to having been party to this when sitting in your Lordships’ Appellate Committee, but in my own defence I have to say that it would have been rather difficult to hold out against the very widespread acceptance by my colleagues of such a process.
The wording of the Human Rights Act requires our courts to “take account” of Strasbourg decisions. It was deliberately so framed and was very much the product of the ideas of the noble and learned Lord, Lord Irvine of Lairg, when Lord Chancellor in this House. The intention seems to have been pretty clear at the time of the passing of the Act: that some flexibility should be left in handling Strasbourg case law. I think it likely that those who framed the wording and those who approved it on many occasions were surprised by the way in which the courts applied it, but the courts were steeped in the long common-law tradition of being rigidly bound by precedent and they never got their mindset away from that.
In spite of the problems which have arisen—and there have been many—I would not support withdrawal from the convention. If it were sensibly applied, I would regard it as a perfectly acceptable series of principles. Of course, if we were to withdraw, that would, as the noble Lord, Lord Lester, and many others have pointed out, undoubtedly be used as a reproachful criticism—a stick with which to beat our Government and our country—as indicating a desire to depart from the standards of the convention. That might indeed be wholly unfair, given the long history in this jurisdiction of restraints on attempts to impose oppressive laws on our citizens, but it is a real risk and a further strong reason against withdrawal.
The same considerations do not apply to the Human Rights Act 1998. That introduced the requirement for domestic courts to follow Strasbourg decisions, in some fashion, and to set aside or declare incompatible legislation enacted by our Parliament. Frankly, I think that events have shown that we would now be better off without the provisions of the Act and I favour its repeal.
The noble and learned Lord, Lord Wallace of Tankerness, referred to a dog’s breakfast. I fear that what we have now takes something of both canine breakfast and dinner. Should we substitute a Bill of Rights for it? I say no, for two good reasons. Once a written instrument of this kind is produced it creates a vehicle for endless litigation and an industrious and ingenious search for loopholes. We have only to look at the terms of some of the suggested worthy and very well-meant attempts to draft a possible Bill to see that they are completely stuffed full of such possibilities for dispute.
My suggestion is simple: forget withdrawal from the convention and forget a British Bill of Rights—just repeal the Human Rights Act 1998 and leave it at that. We should then be back to where we were before 1998. That does not involve rejection of the principles of the convention, let alone withdrawal from it; though to listen to some criticisms of the present proposals one would think that simply repealing the Human Rights Act would immediately mean an abandonment of the convention—it means no such thing.
The courts would be able to pay as much attention to the Strasbourg decisions on the interpretation and application of the convention as they thought fit. From previous experience, I think that they would, in practice, examine those carefully in every case where the principle becomes an issue to see whether a contemplated decision accords with the Strasbourg jurisprudence. The current authority is obviously a useful guide if a point might be decided either way, but the courts would not necessarily have to follow it if they disagreed with it or if the clear terms of a domestic statute required them to reach a different conclusion. That would still leave it open, as before, and as now, for an aggrieved party to take his case to Strasbourg and seek a remedy there. There was a steady flow of such applications prior to the 1998 Act, some of which were successful, but it was not on such a scale that we could not as a country tolerate it. I suggest that it would be worth putting up with that again to gain a degree of freedom from the shackles of the Strasbourg decisions.
The continued existence of the right of appeal to Strasbourg should act as a brake on any temptation to impose excessively draconian legislation and influence courts not to fly in the face of clearly correct Strasbourg case law. Perhaps some decisions of our courts would continue to raise eyebrows and give rise to headlines—whatever the system, we will get decisions like that. But appeals and appropriate legislation should operate to correct it.
A tailpiece, if I may mention it in closing: some of your Lordships have referred to the importance in Northern Ireland of the Human Rights Act and the convention. I do not attempt to speak for any authority or people in Northern Ireland, but my view, based on 40 years of experience in the law before 1998, partly as a practitioner and partly as a judge, is that we did get along pretty well. I put that mild point before your Lordships.
I commend to your Lordships the course of action I have suggested.
Criminal Justice and Courts Bill
Lord Carswell Excerpts(10 years, 4 months ago)
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Lord Carswell (CB)
My Lords, it is a known principle of the law that first-hand evidence is better than second-hand. As one who received and considered interventions in many appeals over the years, perhaps I may intervene briefly to assure the Committee how exactly correct the representations made by the noble Lord, Lord Carlile, and the noble Baroness, Lady Kennedy, were concerning the usefulness of interventions to the courts which hear them.
Of course, there are two stages, as has been made clear to the Committee. First, there is the stage at which the judges consider whether an intervention should be allowed at all. I assure your Lordships that that is a very carefully monitored procedure and that it is far from automatic that an intervener will be allowed to put in an intervention. Secondly, if the intervention is permitted, it is usually fairly briefly presented—and, if I may say so, if it is an intervention by the Members of this House who have mentioned this, very well presented. Some of the regular interveners—the names of three of them are before your Lordships—are of extremely helpful compass and have contributed a great deal to the decision in the proper form of appeals and to the advancement of the law in these cases.
I simply rise to say from the point of view of one who has received many of these interventions and has benefited from them that what has been said on the authority of other people is exactly right.
Baroness Lister of Burtersett
My Lords, I support the amendment and I also believe that the clause should not stand part of the Bill. I welcome the fact that the Government are in listening mode on this clause and that at its early stages the Minister has suggested that he is open to amending it, although I think that it would be better if it simply vanished. I put on the record that I welcome the Government’s climbdown on the question of standing. The Minister said that perhaps we had not given enough recognition to that, so I am doing so now. That was partly in response to points made by the Joint Committee on Human Rights—of which I am a member—which is very concerned about this clause. The committee said:
“Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case”;
and, as has been pointed out:
“Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention”.
It went on to say that,
“it is not clear to us at what mischief this clause is aimed”,
a point made with regard to the previous group of amendments. The committee goes on to say:
“The Government has not produced evidence of abusive interventions or cases in which an intervention has significantly and unjustifiably increased the costs of the case for other parties”.
In contrast, the briefings that we have received include numerous examples where interventions have assisted the courts, as recognised by the senior judiciary; this point has already been made by a number of noble Lords. A number of us here attended an oral briefing recently, and I was struck by the presentation made by a representative from Just For Kids Law. It is very clear that the new rules can prevent it playing this role, thereby depriving the courts of very important specialist information about children in criminal law.
The organisation Justice regrets that the Government have made no attempt to assess the public interest of interventions. They have given no indication of the practical implications. Perhaps noble Lords will permit me to read a series of questions that Justice has asked, because I believe that they deserve an answer. It says:
“While cases of obvious time wasting by third party interveners are easily addressed under the rules currently in place, how will the court be able to determine whether additional costs are in fact attributable to an intervention? If an intervener acts within the bounds of his permission to intervene, with written and oral submissions made only as directed by the court, will they avoid costs? On the language of ‘exceptional circumstances’ proposed in the Bill, it would appear not. If an intervener provides clear, concise reasoning which clarifies the issues and saves everybody time, will saved costs be deducted from those otherwise payable by the intervener? The allocation of costs referable to an intervention is unlikely to be straightforward”.
I have already quoted from the joint briefing, in which civil society groups warn that there is a real risk that the court will lose the ability to hear from that part of civil society that represents the poor, the weak and the excluded, and to bring specialist expertise to bear. This clause will further tilt access to justice in favour of those with power and resources, who will be able to bear the costs, and against those without power and resources, who will not be able to bear the costs. This is in the context of legal aid cuts, which are already tilting this balance beyond what can possibly be deemed to be just.
Criminal Justice and Courts Bill
Lord Carswell Excerpts(10 years, 4 months ago)
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Lord Carswell (CB)
My Lords, in brief compass I will say, if I may, that I support the amendments and all that has been said about Clause 64 by those who have opposed it. I am a little hesitant to express matters in terms of my experience because the vast experience of noble Lords with judicial and advocacy experience is such that mine appears very minor. However, it is rather personal and I may be able to give the Committee some idea from that why I regard this as not only undesirable but unnecessary.
The courts have quite sufficient powers to deal with the matters contained in Clause 64. I can tell the Committee exactly why I say I know that. When judicial review was coming on stream in Northern Ireland in 1984 it was exactly the time I became a judge in the High Court. I was put in charge of those matters coming before the High Court and grew up with it. If I may say so, I helped to shape it and to form the judicial approach to the development of judicial review in our jurisdiction. I was very attentive all the while to the way in which it was being developed very well indeed in the jurisdiction in England and in other jurisdictions. I know from personal experience that the judges have the necessary powers. All they need to do is exercise them sensibly and robustly, with a careful eye to the justice of the individual case.
Once you write down these things and put them into legislation, as I have had occasion to say to the House before, two things happen. The first is that you cannot legislate for everything; there will be difficult and borderline cases when the shoe pinches and the exercise of discretion is an essential part of achieving justice. Secondly, once you write things down, it will give rise to an industry of finding ways round it. As the noble Lord, Lord Pannick, said, it will give rise to satellite litigation. For those reasons I strongly oppose the adoption of Clause 64. It may well be right—and I would not rule it out—that the pendulum should swing to some extent. The Government may have some perfectly valid points about matters that should be attended to, but this is not the way to do it.
Lord Paddick (LD)
My Lords, I rise briefly to speak to this amendment. It will become apparent very quickly that I am not a lawyer, and never have been, but I have been involved in one case of judicial review as a result of becoming a victim of phone hacking.
The fact that I was a victim of phone hacking became known to the police, but the police did not inform either me or other victims when that information came to their notice. As a consequence, together with others, we took the Metropolitan Police to judicial review on two counts: first, over its failure thoroughly to investigate phone hacking in the first instance; and, secondly, on its failure to inform those that it knew were either victims or potential victims of phone hacking to enable them to take steps to guard their privacy. The court found that whether the police should have investigated thoroughly the first time round was entirely a matter for the police. However, on the issue of whether the Metropolitan Police should have informed the victims of phone hacking, the court found that it was under a legal obligation to inform them. That important principle was therefore established through this judicial review.
Bearing in mind that by the time we brought the judicial review we had been informed by the police that we were victims of phone hacking, can my noble friend the Minister confirm that the outcome of that application would not have been substantially different for us? In other words, we already knew that we were victims, but we wanted to establish the principle that the police should have told us earlier. If Clause 64 were enacted, we may not have been able to bring that judicial review and establish the important principle that the police must inform victims of this sort of crime as soon as they become aware of it.
Crime and Courts Bill [HL]
Lord Carswell Excerpts(12 years ago)
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Lord Lester of Herne Hill
My Lords, I declare a former professional interest in that I acted for the Northern Ireland Human Rights Commission in the aborted contempt proceedings in relation to Peter Hain and his publisher. I am extremely grateful to the Attorney General for Northern Ireland for his entirely misguided decision to move for committal because, but for that, I would not be standing here in support of the amendment. We owe everything to the Attorney General because it was that which caused me to contact the Law Commission and the Government, and to discuss the matter with my friend, the noble Lord, Lord Pannick, in the first place.
It is important that the Government have decided to do what we have just heard from the Minister, and that is most welcome. However, I pay tribute to the previous Government, and I see the noble Lord, Lord Bach, in his place when I say this. He will remember that the other antique and archaic speech crimes of sedition, seditious libel, defamatory libel, obscene libel and blasphemous libel were all abolished by the previous Government and Parliament for similar reasons connected with free speech.
So far as blasphemy was concerned, for the reasons given by the Minister, it was decided that, although we could abolish that offence in Britain, we could not do so in Northern Ireland. We left it to Northern Ireland to do so itself, and we thought that it would be easy to do there because Northern Ireland already had a law on incitement to religious hatred that was rather stricter than what we have in this part of the kingdom. However, nothing has happened on that issue in Northern Ireland because there is institutional paralysis about doing anything of the kind. I know that this matter has concerned the Northern Ireland Human Rights Commission, and exactly the same problem arises now. Even though the amendment springs from a problem that arose in Northern Ireland, I am doubtful as to whether the Northern Ireland Government will agree to bring their common law into line with what we are doing in England and Wales. However, given that two other supporters of the amendment know far more about Northern Ireland than I would ever know, I shall not say more about that matter.
I should like to make one other point. Although abolishing this crime in this country will make very little difference because the law is entirely obsolete, it will make a difference in the rest of the common law world. All the textbooks, including that of the noble Lord, Lord Borrie, say the same thing, which is that, although this is an outmoded and archaic offence, there remain many parts of the common law world where it is enforced. The most notorious example occurred in Singapore last year, where Mr Alan Shadrake, who wrote a book criticising the Singapore judiciary’s attitude towards the death penalty, was committed for contempt, sentenced to prison, fined and told to pay legal costs. This gentleman, who is about my age and a distinguished senior writer, was condemned in that way, with the Singapore Court of Appeal applying its view on our case law and this offence. By abolishing the offence today we do not really change much in this part of the world because, apart from what happened in Northern Ireland, it is simply never invoked anymore. However, it will send an important message across the common law world. That is another reason why I am so delighted that the Government have decided to take this course.
Lord Carswell
My Lords, I support this amendment. I spoke briefly in Committee and I intend to be brief again today, particularly in view of the way in which the House has so far received the amendment and what the Minister has said.
Since that debate in Committee, the Law Commission has published this admirable consultation paper, which contains a full and helpful discussion of the issues, the principles and the possible solutions. My view, which was very direct and brief in Committee, remains unchanged. The special sanction for judges remains unnecessary. My reasons remain the same. Judges have to be hardy enough to shrug off criticism, even if it is intemperate or abusive, which has happened; even if it is unfair and ill-informed, which has certainly happened; and even if it is downright deliberately misleading, the same applies.
I speak from some knowledge. I have been scandalised on several occasions in the course of criminal trials at which I was the presiding judge without a jury. It was intemperate, certainly ill-informed and extremely offensive. I was deeply offended and hurt, but I certainly did not consider attempting to ask anyone to invoke the special procedure of scandalising the court. If anyone had suggested it, I would have firmly discouraged him at that time, which is a good many years ago now.
After I read the Law Commission consultation paper, I considered quite seriously whether there was room for the possibility of a new and more specific offence, penalising possibly deliberate and malicious targeting of a judge by making untrue and scandalous allegations into something of a campaign. I am persuaded, however, that it is better not to introduce any such offence into the law but simply to leave it at abolishing the offence of scandalising.
My reasons are three. First, special protection of judges immediately invites criticism from those who are all too ready to give vent to it. Secondly, if a judge had to give evidence in such proceedings, it would create a further and better opportunity for intrusive cross-examination and create a field day for publicity for critics of the judiciary. Thirdly, as I have said before, judges have to put up with these things; they have to be robust, firm and, on occasions, hard-skinned enough.
The Law Commission, in my view, was right in its provisional conclusions and I hope that when the report has been considered, the responses will confirm that. I would certainly support the amendment that the offence should simply be abolished.
Finally, as noble Lords have said, this of course does not apply in Northern Ireland. The authorities there will form their own view and take their own course. I cannot and do not in any way speak for them, nor have they consulted me about such provisions. I have to say, and I hope that they will take this into account, that I cannot see any reason why judges in Northern Ireland should have any different protection from judges in England and Wales against scandalising. I think the same considerations apply, and having been a judge there for 20 years, I would certainly not wish to see any differentiation.
Lord Beecham
My Lords, I echo the remarks made by the Minister and by other noble Lords. We are entirely supportive of the amendment, and glad that the Government have agreed to take matters forward in the way that the noble Lord indicated.
Crime and Courts Bill [HL]
Lord Carswell Excerpts(12 years ago)
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Lord Woolf
My Lords, I am most grateful for the manner in which the noble and learned Lord, Lord Lloyd, has addressed the House. I strongly endorse every word that he has said. I support the amendment, to which I have added my name. I want to reaffirm what he said about the desire of the senior judiciary and successive Lord Chancellors to achieve greater diversity. As I see it, any objection to anything that would improve diversity has to be approached with caution. However, I say, without hesitation, that I do not believe that what is proposed at the moment with regard to part-time judges in the Court of Appeal and in the Supreme Court will achieve what we want. All it will do is give false expectations that cannot possibly be fulfilled.
The difficulty of accommodating part-time judges is very real but it can be done, and has been done, in the lower courts. However, the Court of Appeal and the Supreme Court are conducted in an entirely different way from what happens in the lower courts. What is more, their diet is different. Before I addressed the House today, I took care to speak to Sir Anthony May because for seven years, part of which time I was the Lord Chief Justice, he was the judge who had the heavy responsibility of determining how the courts would be staffed. His conclusion was that to try to adopt the proposal of part-time judges in appellate courts would create a nightmare—that is his word. Already it has been accepted that the High Court should be able to make progress, if possible, in that respect. I have reservations about whether that could be achieved in the High Court and Sir Anthony shared my reservations in that regard.
If that were to be implemented in respect of the Court of Appeal and the Supreme Court, would the position with regard to diversity be improved or would this be nothing more than a gesture, and one wholly without substance? If so, I do not believe that anyone who really wants to see diversity would welcome this provision. I know of no supreme court where part-time judges take part; likewise, I do not know of any court of appeal where part-time judges are appointed. In essence, their work is not appropriate for what could truly be called part-time judges.
However, while I entirely agree about the possibilities of flexibility, we are already extremely flexible in our approach to the use of our judges. It is only because of flexibility that, for example, we can enable judges to conduct inquiries more and more frequently, as has happened of late. If we were not flexible, that would not be possible. Likewise, in the current conditions of international co-operation between judiciaries of different countries, it is necessary for judges to meet in different countries and for there to be a constant programme of change and discussion between judiciaries of different jurisdictions. Diversity is a matter that they are concerned about but they, as far as I know, have no proposals of this nature.
I observe that later amendments propose to place a duty on certain senior judges to promote diversity. If it is thought that that duty is necessary, I am all in favour of it. I personally have doubts as to whether that duty will add to what they are already trying to do but I see no problem with it appearing in the statute. But I certainly urge the Minister to consider whether this suggestion is realistic.
Part-time working could even have an adverse effect on diversity. When I have discussed diversity with former colleagues, I have noticed that senior judges, who are finding the work very hard for the reasons indicated by the noble and learned Lord, Lord Lloyd, feel that it might be rather nice to have a couple of months off from time to time. In fact, it would be much better for judges who are finding the work overburdensome to retire rather than work part time. If they retire, they allow other judges to come forward and be promoted to courts such as the Court of Appeal and the Supreme Court. If they remain, that is not the case.
Once a judge retires, as long as he is under the age of 75, when you become statutorily senile, it is possible to be used from time to time—as much as the former judge wishes—when there is a need for an additional judge to help the administration of justice. Many judges sit in that way in the Court of Appeal and in the Supreme Court. That is just one more example of the flexibility that can be achieved without the need for legislation. I urge the Minister to take advantage of this opportunity to look again and, at least, decide not to keep in the statute a provision of this sort relating to part-time employment of judges in senior courts.
Lord Carswell
My Lords, Plato said:
“Wise men talk when they have something to say; fools because they have to say something”.
I hope that what I have to say will fall into the former category, but having heard what the very experienced and authoritative noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, said, I will make my point short, simple and direct in support of the amendment.
I had quite a long time—a good number of years—in appellate courts, and for seven years as Lord Chief Justice of Northern Ireland I was closely concerned with appointments. I am wholly and unequivocally in favour of promoting women to the posts that they should occupy. It follows that I am equally in favour of any flexible means of working that will effectively promote that objective. The intention behind the clause is admirable, but I am afraid that it simply will not work. The reason is simple. It was suggested by one or two noble Lords in Committee that most of the cases in the Supreme Court are of two days or fewer so there is really not a problem. I regret that it is not as simple as that.
The figures given to me by the Supreme Court are that in the first three years of its existence—which have just elapsed now—there were 168 cases heard. Of those, some 33 occupied more than two days. That is almost 20%. In itself that is not an insignificant proportion, but the really important thing is that virtually all of those longer cases were the most significant, important, demanding and difficult cases that the justices had to try. They are the ones which everybody should be available to take part in when required. If a judge is part-time and would not be available to take part in the longer and harder cases because of the length of time they occupy, it is damaging to collegiality—the team spirit of the court, if you like.
From experience, I can assure your Lordships that that is an important factor. If a judge cannot play, let us say, in the Premier League matches, there would be a feeling that he or she—and we are really talking of “she”—cannot pull their weight and that they are in some way second-string judges, though they may be very able people. They will feel that they are not really there at the party; the other judges may feel that too if they are carrying the burden. That is undermining to the spirit and effectiveness of the court and of the part-time judges.
I entirely agree that it is important to recognise and tackle this problem and to find ways of improving the promotion of women to the highest positions, which they should be occupying. I will not weary your Lordships with the ways that have been suggested. My noble and learned friend Lady Butler-Sloss spoke in Committee about this. There are ways, if they are properly, fairly and conscientiously followed by the appointing authorities. While the intention behind the present provision is excellent, the way adopted by the Bill of putting it forward with part-time judges is a mistake. It will not work and I support the amendment.
Baroness Butler-Sloss
My Lords, I am an early example of judicial diversity. I became at one time the senior woman judge in the country until the noble and learned Baroness, Lady Hale, became a member of the Supreme Court. It is inevitable, therefore, that I would support flexibility, but I do not support the term “part time”.
I combined being a judge at four different levels, including the Court of Appeal but not the Supreme Court, with trying to manage childcare. I did not seek time off, but I can see the advantages of having it from time to time. I certainly do not see the need to have it on a weekly basis. For the reasons that the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, have already set out, I question how far it is sensible to try to go along the path that the Government wish to pursue. There are real problems about it, certainly in relation to the senior judges. There will inevitably be an adverse impact on full-time judges if they have genuine part-time judges sitting in the Court of Appeal with them. It may be that the Supreme Court, where I do not have experience, does not sit very much more than two or three days, but it is not at all unusual to sit in the Court of Appeal for more than a week. Which judge who is genuinely part time—say, doing three days a week—would be able to take on a case of any length? It would mean that a full-time judge would have to take those cases. Inevitably, there would be a degree of resentment and, indeed, as the noble and learned Lord, Lord Carswell, said, a part-time judge might not feel part of the party.
I sat in the Court of Appeal on a number of long cases. If, when I was President of the Family Division, I had been asked whether some of my 19 judges could work part time or on flexible working for two or three days a week, with High Court judges being sent out on circuit sometimes for as long as six weeks at a time as Family High Court judges, it would have been, as Sir Anthony May said to the noble and learned Lord, Lord Woolf, a nightmare. I would not like the next President of the Family Division even to have to contemplate such a thing among the duties that he or she might have to take on. In suitable cases, there is no doubt that there can be flexibility. If people are in difficulties, they should be accommodated, and they are accommodated. Many years ago I recall a High Court judge whose wife had died unexpectedly and he was left with young children. Very considerable accommodation was made so that he was able to deal with his rather traumatic family life as well as continuing to sit as a High Court judge.
I would also say that the concept that the top court in the country is going to be part time is rather odd. What would be the message going out to the public—that the judges who matter most in the country are actually part time? I find that very odd indeed. Following on from what other noble Lords have said, I think that diversity can be achieved for women and for ethnic minority men and women who have not yet been referred to, although I hope that a number of them will come through to the Supreme Court—some of them certainly deserve to do so in due course. The flexibility that noble Lords have been talking about can and ought to be achieved without using the term “part time” as it sends out entirely the wrong message to everyone within the judiciary and those without.
I am particularly concerned that the Judicial Appointments Commission may feel obliged to appoint part-time judges because that is what it says in the legislation. If the commission appoints judges and then allows the Lord Chief Justice, the heads of other divisions or the President of the Supreme Court to be understanding when a particular judge wants to take some time off, that is infinitely preferable. I will not say any more about the fact that in any event this is not going to happen, probably for a generation.
Crime and Courts Bill [HL]
Lord Carswell Excerpts(12 years ago)
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Lord Goldsmith
My Lords, I support this amendment. I understand that the Government may be in a position to say something favourable about it, so there is no need to say anything further, other than that the amendment may anticipate a little bit the debate that may take place on the next amendment about the importance of recognising the Supreme Court as an independent court no longer dependent on the Lord Chancellor.
Lord Carswell
My Lords, I support this amendment. For most of my 50 years in courts, this function was carried out by police officers who had the authority and the presence to be able to keep order. At times in my rather coloured career, that was necessary. At one time, we received intelligence that a gun was being smuggled into court to shoot either a witness or me or both of us. Happily, it did not arrive. The police presence was phased out, as it has been in other parts of the United Kingdom, and it has been necessary to appoint security officers. In my experience, they have never had to use these powers. They are needed because a lot more people attend the Supreme Court than used to attend the Appellate Committee upstairs or the Privy Council hearings. I support the amendment as one that it would be wise to have.
Lord Ahmad of Wimbledon
My Lords, this amendment concerns the security arrangements for the UK Supreme Court. As the noble Lord, Lord Pannick, has so elegantly explained, Amendment 112 would provide UK Supreme Court security officers with powers similar to those of court security officers appointed by the Lord Chancellor in accordance with the Courts Act 2003 in England and Wales and would address that gap.
The Government accept that UK Supreme Court security officers should have the same broad powers as court security officers in England and Wales, subject to appropriate safeguards, including in respect to training and security clearance. Having looked at the amendment, the Government are happy to commend it to the House.
Crime and Courts Bill [HL]
Lord Carswell Excerpts(12 years, 5 months ago)
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Lord Goodhart
I am sorry to interrupt, but it appears that in the order in which these matters are printed, I am the second and final person specifically connected with Clause 18 in this group, and it seems to me that this is the point at which I should be able to state my views on this matter.
Lord Falconer of Thoroton
I think that the noble and learned Lord, Lord Lloyd is correct that because the name of the noble and learned Lord, Lord Carswell is on the amendment of the noble and learned Lord, Lord Lloyd, the noble and learned Lord, Lord Carswell, should come next.
Lord Carswell
I am grateful to your Lordships, and I am sure that the noble Lord, Lord Goodhart, will give us the benefit of his wisdom very shortly. I support Amendments 115 and 116, moved by the noble and learned Lord, Lord Lloyd of Berwick. Your Lordships know him very well. You know his history and his distinguished attainments. Perhaps I may shortly explain where I come from, both literally and figuratively?
I was for 25 years a judge, first in the High Court of Northern Ireland, in the Court of Appeal. For seven years I was Lord Chief Justice of Northern Ireland, and very closely concerned with appointments at all levels. Then, for the final five years before I retired I was a member of the Appellate Committee of this House, sitting as a Lord of Appeal in Ordinary, and hearing a very wide range of appeals, including some of considerable significance in the public interest.
I also gave evidence to the Select Committee of this House on the constitution, and I regret rather that they did not see fit to accept all of my submissions. I do not say that out of any feeling of personal pique, but rather because of the strength of my belief that one must appoint the best persons to judicial posts. By best, I mean most fitted to carry out judicial functions. That must and shall always be, I hope, the paramount criterion.
It is vital to do that to preserve the quality of justice and of the legal system, to which other persons have paid tribute on other occasions. I accept without reservation that that requires a certain amount of diversity. First of all, diversity of skills and experience—that goes without saying—so that the Court may have the benefit of the best advice and participation of those who really know about a particular subject. Secondly—and this is a more delicate area—diversity of background, gender, ethnicity, and professional experience and background.
I also accept, quite unreservedly, that facilitating part-time working is highly desirable, to help women in particular to pursue their careers and combine them with family responsibilities. I am strongly in favour of this where it is achievable. The provisions of paragraphs 2 and 10 of Schedule 12 are designed to assist this admirable object. My point is that the intention is excellent but the method is wrong.
Part-time appointments at the higher level—High Court, Court of Appeal, and Supreme Court—simply will not work. First, judges in any of those courts have to be available to shoulder their share of the burden of long and complex cases. That is simply not possible for a part-time judge. That applies most obviously at trial court level, where you might have to take a six-month trial, or a long civil case. If you cannot take your share of those, you are obviously deficient and in default in some respect.
Baroness Falkner of Margravine
I am very cognisant of the difficulties that might be involved in those scenarios, but has it never happened in the Supreme Court, or in its predecessor court, that a judge in the middle of a trial got ill for an extended period of time? I suggest that both the noble and learned Lords, Lord Woolf and Lord Carswell, are framing this debate in terms of part-time far too narrowly. There is far greater flexibility in the reality of part-time working than the noble Lord suggests.
Lord Carswell
Perhaps I might develop the point as I come to it. I have no experience myself of a judge taking ill and being unable to carry on, but I do not think that that really assists the argument.
It also applies—and I say this from my own observation—at trial court level, where it is most obvious. It is a significant factor in appellate courts. No doubt in the Supreme Court many cases are quite short—two days, sometimes even less—but there are many cases, and the most important and significant cases tend to be somewhat longer. If a part-time judge is unable to sit on these for practical reasons, and cannot pull his or her weight, then that judge is downgraded in the eyes of other people to being a second-string member of the court. That is no good for anybody.
Secondly, on the practical level a part-time judge would normally need some fixity of schedule, so that the rest of the judge’s life can be arranged. That is why a person is likely to want to be a part-time judge on, let us say, Monday and Tuesday of each week. The timetable would have to be juggled to ensure that the judge is able to sit on those regular days. Obviously difficulties would arise if for various reasons an appeal needs to be listed on the other days of the week, and of course that happens, in fitting in the appeals for which that judge’s particular skills are required.
It is not as easy as turning up on fixed days and taking cases on those days. I fear that it is bound to lead to a feeling that part-time judges are not pulling their weight. This is highly detrimental to collegiality, which is of prime importance on an appellate bench. It may be viewed—however unfairly—by others that that judge is not a proper member of the court. The judge may also feel, subjectively, concern that she is not fully accepted as a full member. That, although it may not be exactly the feeling held by the others, would undermine the judicial confidence which is so necessary for high-class judicial work.
It is important that we try to find ways of accommodating this problem and of using the talents of able women, of which I am very strongly in favour myself. It is important that we can work out a way of not confining them to the junior ranks where it is easier in practice for them to carry out their functions part-time.
A suggestion has been mooted by the noble and learned Baroness, Lady Butler-Sloss, that one could do that by stages, for a woman. If she has family responsibilities at an earlier part of the time when she is ready for judicial life, then she could be appointed to a lower-tier court, with a clear assurance that when family circumstances change and she would be available for full-time work, she would receive proper and serious consideration for early promotion to the higher levels, and that that assurance should be fully honoured by those who are making the appointments. Paragraph 2 was a well intentioned attempt to facilitate women or other people by extending part-time appointments, but I fear that it did so in the wrong way.
Lord Woolf
My Lords, I spoke on the subject at Second Reading. What I said is on the record and I will not repeat it. However, I am most anxious that it should not be thought, as a consequence of my speaking in succession to the noble and learned Lords, Lord Lloyd and Lord Carswell, that retired members of the senior judiciary are against increasing diversity. I stress as forcefully as I can that the contrary is true. I know from the times when I was Chief Justice or held other senior offices that we did everything we could in co-operation with successive Lord Chancellors to improve the position. The message that became clear as a result of our efforts was that achievements would be brought by approaching the matter in stages.
The first step involved tackling those who were attending law schools in this jurisdiction and ensuring an egalitarian approach there. I am happy to say that if one goes now to the law schools of this country, one finds at least an equal number of women and men studying to become our lawyers and judges of the future.
The next stage is to make sure that any hurdle that can reasonably be removed is removed from the path of those who enter the legal profession. At the moment our task is to ensure that they realise that the opportunities for judicial appointments are greater today than they have ever been. The appointments system that we have will treat applicants on a totally equal basis irrespective of their sex and of any background that they might consider a possible handicap. The judiciary plays its part in ensuring that the message is heard by those entering the legal profession and by those within it.
On the issue raised by the amendment of the noble and learned Lord, Lord Lloyd, to which I put my name, it is no use putting something in legislation that will have no practical effect. I refer to part-time judges for the Supreme Court, because it seems it is here where the argument seems clearest. From my knowledge of those who might seek this judicial appointment, I can conceive of nobody who could not take a full-time appointment to the Supreme Court but might be able to take part-time employment there. Having made that proposition, I point to the nature of the Supreme Court and to its role in our legal system now that it has been established. It is the highest court we have, and it has the heavy responsibility of maintaining the reputation established by generations of Supreme Court judges, who in the past were called Lords of Appeal in Ordinary. The court is looked on internationally as one of the finest law courts that there is, and its decisions are treated with the greatest respect.
We must do two things. First, we must not fall into the trap of using legislation to make gestures. To put into this legislation a provision that refers to part-time Supreme Court judges, for the purpose of trying to give a message to those who might be coming through the system that they should seek to become a Supreme Court judge, would be unrealistic if it implied that someone of mature years—probably 60—who wished to be a Supreme Court judge could apply for the highest pinnacle of our judiciary on any basis other than full-time. If there is to be an educational process, it should take place at a lower level in the system. I urge the Committee not to put into the Bill a provision that will have the effect of offering part-time employment in the Supreme Court when there is no realistic possibility that there will be any candidate for that part-time post who could be appointed in the foreseeable future.
The result will be that people will say, “Look, in 2012 Parliament specifically passed legislation that was intended to make available to a woman the possibility to sit as a part-time Supreme Court judge—but nobody has done that”. It will not happen because there has never been a candidate who could apply to be a Supreme Court judge under present circumstances.