Crime and Courts Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Lloyd of Berwick

Monday 25th June 2012 Lords Chamber

[Lord Lloyd of Berwick]

Indeed. I have to answer the noble Baroness by saying that I am certainly not at the moment persuaded that part-time judges should be appointed to the Court of Appeal. I simply do not see how it would work. I take the same view about High Court judges. The way to the High Court Bench for the sort of women whom the noble Baroness has in mind is via the circuit Bench. There is a clear way through for them. Indeed, one noble Baroness who is here today has taken exactly that course.

[Lord Falconer of Thoroton]

Perhaps I may follow up on that. I am not clear why the noble and learned Lord thinks that it is okay for there to be part-time circuit judges but not part-time High Court judges. I say that because I appointed High Court and circuit judges who had young children. I am completely unclear as to why the noble and learned Lord draws a distinction.

[Lord Lloyd of Berwick]

The noble and learned Lord, as Lord Chancellor, never appointed a part-time judge to the High Court. He quite rightly appointed plenty of part-time judges to the circuit Bench, and that was correct because they are obviously likely to be younger. We have to encourage young women with family commitments to come forward at that stage. The noble Lord will be the first to accept that not many such women apply to become members of the Supreme Court.

[Lord Falconer of Thoroton]

The noble and learned Lord will confirm that I was not legally entitled to appoint them to the High Court. That is the point of the amendment.

[Lord Lloyd of Berwick]

I confirm that the noble and learned Lord was not entitled to appoint to the High Court, but there was no need for him to do so because he could, and did, appoint to the circuit Bench, from which High Court judges would emerge. He knows that very well.

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[Lord Falconer of Thoroton]

I will not intervene on his intervention, but the noble Lord is wrong.

[Lord Lloyd of Berwick]

I beg to move.

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[Lord Lloyd of Berwick]

My amendment has been moved by me and supported by two other noble Lords who would like to speak to it.

[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.

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[Lord Falconer of Thoroton]

My Lords, I am in favour of the amendments proposed in paragraph 9 in part 2 of Schedule 12 and am therefore opposed to the amendment that the noble and learned Lord, Lord Lloyd of Berwick, advances.

I speak from my experience of being engaged in judicial appointments as Lord Chancellor, which is not the same as that of the noble and learned Lord, that there is always somebody who is the best candidate. My experience of judicial appointments is that you are very often comparing people who came with completely different experiences and particular specialities, who are both aiming to fill the same position. You could have a solicitor who was very experienced in dealing with general litigation, widely admired for his wisdom and sense, and a criminal barrister widely admired for her advocacy skills. The idea that one was better than the other and that one should approach judicial appointments on the basis that one was trying to grade the candidates for an Oxford First as 1, 2, 3 and 4 was not remotely my experience.

I am always suspicious of people who advance arguments along the lines of, “I live in the real world”. The real world involves making comparisons between people where it is essentially not possible, in any meaningful way, to grade them as 1, 2, 3 or 4. You will find that there are people applying for jobs who are of equal merit. That is the position, whether you are dealing with an appointment for one position or with a wider appointment, for example encouraging people to fill 15 posts as circuit judges—

[Lord Lloyd of Berwick]

Would the noble and learned Lord explain why his experience as Lord Chancellor is so very different from the experience of the Judicial Appointments Commission, which has said quite clearly that it has never found people to be of equal merit and does not anticipate that this clause will help in the future?

[Lord Falconer of Thoroton]

I do not know who the noble and learned Lord is referring to. If he is referring to Mr Christopher Stephens, I have had no conversations with him. All I can do is set out my own experience in relation to this.

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[Lord Lloyd of Berwick]

Of course, having listened to the noble Lord, I am bound to think again and I shall. At this point all I will do is agree with the noble Baroness, Lady Falkner, that this question does not arise at the lower levels at all. At the lower levels there will usually be a large number of vacancies and a large number of applications, so there will be no question at all of putting candidates into any sort of order. However, it clearly does arise where one has one or two candidates from the Court of Appeal applying for the Supreme Court, or one or two candidates from the High Court applying for the Court of Appeal. At that level I say that there has never been any difficulty in choosing between them, so once again, this is a provision which will not help in practice.

To those who say the opposite, I shall read how the recommendation of this advisory panel was dealt with—it all comes from that recommendation. When that recommendation was considered, again, in 2011, the answer was as follows:

“The JAC will always select on merit and has to date been able to distinguish between the relevant merits of different candidates based on a careful assessment of an applicant’s entire profile and background”.

Certainly, background is taken into account as the noble Baroness, Lady Prashar, would stress.

[Lord Falconer of Thoroton]

My understanding is that the Judicial Appointments Commission does not appoint to the Court of Appeal and the Supreme Court. I understand that the noble and learned Lord, Lord Lloyd, is saying that there is no problem with this provision in relation to the appointments that it does make—so he appears to be disagreeing with Mr Stephens—and in relation to the area where he is disagreeing, that is not a matter for the Judicial Appointments Commission. So I am not quite clear what point he is making.

[Lord Lloyd of Berwick]

The point is whether it arises in practice that it is impossible for whoever is making the appointment to choose between two equal candidates. The noble and learned Lord, Lord Falconer, says he often had that difficulty. If that is a real difficulty, it is very surprising that the Judicial Appointments Commission, which has made innumerable appointments, has never found that difficulty in practice, and it says that it does not anticipate, therefore, that the provisions of the Equality Act will ever be relevant in practice, either at its level or at any other level.

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[Lord Lloyd of Berwick]

I am still replying to the debate and the debate is still going on but it is quite apparent that I will not persuade the noble Baronesses. In those circumstances, I beg leave to withdraw the amendment.

[Lord Falconer of Thoroton]

Do not withdraw it. There is more in the group.

[Lord Lloyd of Berwick]

From you? I am sorry.

[Lord Falconer of Thoroton]

I am very grateful to my noble and learned friend for not withdrawing his amendment because it allows me to deal with the final set: Amendments 123A, 124A and 126A. I congratulate the Minister on the complicated group that he put together. None of us objected to it so we all are to blame for this particular procedural mess.

I think that this is the last thing we will deal with tonight. These amendments very respectfully question the wisdom of the Bill in replacing the Lord Chancellor with the Lord Chief Justice in relation to the appointment of a number of specified appointments. As noble Lords will recall, in relation to a number of specified judicial appointments, including circuit judges and recorders, the Judicial Appointments Commission makes recommendations to the Lord Chancellor and the Lord Chancellor can ask the Judicial Appointments Commission either to think again or to reject a particular appointment. If the Judicial Appointments Commission then comes back with another appointment, the Lord Chancellor is broadly obliged to accept it. We put together this type of arrangement because those of us involved in the Constitutional Reform Act 2005—I have in mind in particular the noble Lord, Lord Goodhart, and the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf—all believed that it was extremely important that the Executive remained involved in the appointment of important and significant judicial appointments.

What is in effect being legislated for now is that the Lord Chancellor—the Executive—should remain involved—put aside the question of the Court of Appeal, the Supreme Court, the Lord Chief Justice and heads of division—only in the High Court. I suggest to the Minister that that is a big mistake. The reason that the Lord Chancellor was given the residual power is that he is able, as an external force to the Judicial Appointments Commission and to judges, to say, “Think again”. The areas where the Lord Chancellor could say “think again” in a way that the Lord Chief Justice—the chief judge—might not be as willing to do might be, for example, in relation to diversity issues or to criteria adopted by the Judicial Appointments Commission.

I suspect that the main thinking behind this is that the Lord Chancellor is fed up with looking at lots of names of people to be appointed circuit judges. If that is the reason, it is a discreditable, bad reason for making the Lord Chief Justice, who does not have the resources that the Lord Chancellor has, look at them, and it removes the Lord Chancellor—the Executive—from the important position of appointing judges.

I ask the Minister to think again. This is an important issue. It reduces the stake of the Executive in the appointment of circuit judges, who are the major criminal judges in this country, and recorders, the major stepping stone from being a part-time judge to being a full-time judge. Those are the two most important appointments. To suggest that the Lord Chief Justice makes them adds nothing to the process. The pressures on the office now are huge. In my respectful submission, it is a big mistake to do that.

I have dealt with paragraph 27 about judges. Paragraphs 28 and 40, with which my other two amendments deal, are about replacing the Lord Chief Justice with the Senior President of Tribunals, who is basically a Court of Appeal judge. The Government are replacing the Lord Chancellor with a senior Court of Appeal judge in the context of senior appointments to the Tribunals Service. The Tribunals Service now covers a huge range of administrative matters and its judges are just as important in relation to involving the state as those other judicial appointments. I hope that the Minister thinks about removing the Executive from these roles and placing the burden on people who cannot carry it for administrative reasons. If one is serious about the Executive having an influence on criteria and diversity, this is the way it would be achieved. I invite the Minister to think about that.

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[Lord Falconer of Thoroton]

I cannot resist the temptation to ask how many people who were on the Midland Circuit in 1970 are now being appointed judges. Their age, if they were on the circuit then, would now be 68.

[Lord Lloyd of Berwick]

I beg leave to withdraw Amendment 115.

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Lloyd of Berwick

Tuesday 10th May 2011 Lords Chamber

[The Lord Speaker (Baroness Hayman)]

I have to inform the House that if Amendment 1 is agreed to, I cannot call Amendment 2 by reason of pre-emption.

[Lord Lloyd of Berwick]

My Lords, I support four years rather than five years for the reasons which I spelt out in Committee and to which I had intended to return when we reached Amendment 3, but maybe I should address that a little earlier in view of certain observations made by the noble and learned Lord, Lord Falconer, with which I agree.

I put my name to Amendment 3 last week because it followed very largely the amendment which was debated at length in Committee. I was therefore surprised to receive an e-mail over the weekend informing me that the noble and learned Lord was seeking to withdraw Amendment 3 and to substitute Amendments 1 and 2, which we now have, and asking me whether I would support them instead. I say at once that I cannot support Amendment 1.

At Second Reading, the noble and learned Lord accepted that it is open to any Government at any stage to indicate the date of the next election. That can be done within existing constitutional arrangements, as I believe everybody accepts. It did not require an Act of Parliament to establish May 2015 as the date for the next general election, but that is the course that the Government have chosen to take. There is nothing as such that is wrong with that course; it is the date that they have chosen and have put in the Bill.

If, therefore, May 2015 was to be challenged by the Opposition, surely it should have been challenged in Committee and not left to the 59th minute of the 11th hour before Report. Far from challenging that date, the amendment in Committee built on Clause 1(2). It assumed May 2015 and then substituted in Clause 1(3) “fourth” for “fifth”, and that is the amendment which I supported and still support.

It is true that, in response to the noble and learned Lord, Lord Wallace of Tankerness, on 21 March at col. 508, the noble and learned Lord, Lord Falconer, said that it had always been the Opposition’s intention to challenge the date in Clause 1(2), but that was not what they did. It is true also that at the end of the debate in Committee, it was argued that if four years was to be the norm for future Governments, it should be the norm for this Government. I do not agree. The Select Committee pointed out in paragraph 17 of its report the crucial,

“distinction between ‘the immediate concern of the Government’”—

this Government—

“‘that it should continue for five years’ and ‘the long-term issue’”,

of what should be the norm for future Governments. Those are distinct issues and it is the long-term issue to which all the evidence given in the Select Committee was directed.

It is the same as the distinction that was drawn very clearly by the noble Lord, Lord Cormack. He accepted May 2015 as the date for this Government because that is the date that any Government could have fixed. He thought that it was unnecessary to include it in an Act of Parliament, but there it is. Nevertheless, he favoured four years thereafter.

[Lord Falconer of Thoroton]

Is it not right that the same restrictions apply to this Government in this Parliament up to 2015 as would apply after 2015? If the same restrictions on having a general election apply in this Parliament, why is five years okay for this Parliament but not the next?

[Lord Lloyd of Berwick]

I am grateful for the noble and learned Lord's intervention, but he is ignoring the crucial distinction between the two issues. One is the issue as to what this Government are going to do. He accepts as we all accept that this Government can choose 2015 if they want. The issue that we ought to be discussing is not for this Government but for future Governments. It is entirely consistent, if I may say so, for us to accept May 2015 for this Government yet to say that the norm hereafter should be only four years.

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Lloyd of Berwick

Monday 21st March 2011 Lords Chamber

[Lord Falconer of Thoroton]

Can the noble Lord quote one bit of evidence in favour of five years? I suspect that the public have no view on whether it should be four years or five; it is for us to judge.

[Lord Lloyd of Berwick]

I shall answer on the noble and learned Lord’s behalf. The evidence given to the Power commission was clearly in favour of more elections rather than fewer, not more than four years apart.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord Lloyd of Berwick

Monday 14th February 2011 Lords Chamber

[Lord Falconer of Thoroton]

I am grateful to the noble and learned Lord for his speech, but there is a fundamental problem with it; he referred to flexibility, but the amendment seeks to establish the principle that in a party political broadcast you should not be able to support an outcome in the AV Bill. The Electoral Commission says that it supports the intention behind the amendment, but goes on to say that it is not sure that it is necessary to achieve the intended outcome because of the main purpose issue in Section 127. Surely it is better that there should be clarity about what is and is not allowed—and what should not be allowed is support for an outcome in a party political broadcast, because that would drive a coach and horses through the expenditure limits. I seek the opinion of the House.

[Lord Lloyd of Berwick]

In the event that the amendment is successful, it seems an awful pity that we should use this language. It makes no sense as drafted, as I think the noble and learned Lord accepts. Is there a way, even at this late stage, in which we can adopt his alternative language, which is much clearer?

[Lord Falconer of Thoroton]

My Lords, the Clerk, brutally, is shaking his head. I would be willing to adopt the noble and learned Lord’s approach to this matter. However, if the House adopts the approach that I am taking, I anticipate that the Government will either reject the amendment in the other place, or, if having had time to think about it the amendment is accepted there, the House of Commons could then tidy it up. I respectfully and tentatively suggest that the House should vote on the principle of whether there should be a prohibition on political parties being able to support or oppose the AV referendum in their party political broadcasts. If my amendment is carried, it can be tidied up or rejected in the House of Commons later.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord Lloyd of Berwick

Tuesday 8th February 2011 Lords Chamber

[Lord Lloyd of Berwick]

Apart from the question of timing and the chairmanship of an inquiry, or whatever we call it, what is the substantive difference between a public inquiry and what is proposed, a public hearing? Can the noble and learned Lord summarise the substantive differences for my sake?

[Lord Falconer of Thoroton]

I am grateful to the noble and learned Lord for that opportunity. As I am sure that the noble and learned Lord will confirm, a public hearing simply involves an opportunity for people to come to a room—a town hall or a village hall—to make or read a statement. It is recorded, and that is it. The next person then stands up and makes a statement, and then he or she sits down. It goes on like that. A record is kept of what is said, but there is no resolution of any issues. The statement of what is said is then, I assume, placed on the web so that everybody can see what was said

A public inquiry would involve Mr X saying, “I think that the boundaries should be here”, and Mr Y saying, “I think that the boundaries should be there”. Then the chair—having heard all the representations that people want to make, determining what the process is, having heard what everybody has said—says, “I recommend to the Boundary Commission that it should draw the boundaries there”. So it is a process where issues are identified and some resolution is given. That is the fundamental difference.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord Lloyd of Berwick

Monday 15th November 2010 Lords Chamber

[Lord Lloyd of Berwick]

Of course communities matter. I yield to no one on that view but we are talking here about the specific question of whether the right to elect is itself a private interest, as described in the Standing Orders.

[Lord Falconer of Thoroton]

The argument I am making, which is based on the Charlwood and Horley Bill from 1973, is that the interest lies in the group with which you vote. The argument over the Charlwood and Horley Bill was about whether you should be in Surrey or Sussex. It was not about an individual right to vote; it was about who you were grouped with. I earnestly ask the noble and learned Lord to consider his view on the Charlwood and Horley Bill and why I am not right in what I am saying. He is putting the argument back to me in a way that is not how I am putting it to him.

[Lord Lloyd of Berwick]

Of course I am; that is my purpose. I am putting it in the way it should be put. To my mind, whatever group the individual may be in, it remains his individual right. That is not a private right as described in the Standing Orders.