Crime and Courts Bill [HL]

Debate between Lord Carswell and Lord Woolf

Tuesday 4th December 2012 Lords Chamber

[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.

Crime and Courts Bill [HL]

Debate between Lord Carswell and Lord Woolf

Monday 25th June 2012 Lords Chamber

[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.