Crime and Courts Bill [HL]

Lord Goodhart Excerpts

Monday 25th June 2012 Lords Chamber

[Lord Carswell]

My Lords, I support the amendment—

[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.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

My Lords, I believe that the amendment in the name of the noble and learned Lord, Lord Lloyd, has been moved, and the name of the noble Lord is not, I think, on that amendment. However, the name of the noble and learned Lord, Lord Carswell, is on it.

--- Later in debate ---

[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.

[Lord Goodhart]

My Lords, I have proposed the removal from the Bill of Clause 18 and Schedule 12. I make it clear that this is not done to abolish the provisions that are dealt with in Clause 18 and Schedule 12. Instead I intend to enable the Government to provide, in proceedings that are separate from the Bill, a better system for the extremely important issue of judicial appointments. The provisions included in the Bill are inadequate and unsatisfactory.

The Constitutional Reform Act 2005 was of great importance. It modified the functions of the Lord Chancellor. In fact, it not only modified the functions but completely altered them. It created a Supreme Court to replace the jurisdiction of the House of Lords. The constitutional importance of the Act was recognised by those who negotiated it and by many others. I am well aware of this because I was one of the Members of the House of Lords who negotiated the matter in detail. Others included the noble and learned Lord, Lord Falconer of Thoroton, who I am very pleased to see in his place and who was then the Lord Chancellor, and the late and greatly missed Conservative Lord Kingsland.

As far as I am aware, the Crime and Courts Bill is the first Bill to make significant amendments to the Constitutional Reform Act. Significant amendments appear first in Clause 18—although all that the clause does is tell us to go and look at Schedule 12, which is tucked away at the back of the Bill. It starts on page 167 and continues to page 201. It starts with the provision that enables any number of judges to be appointed to the Supreme Court provided the judges serving on the court do not permit,

“the full-time equivalent number of judges of the Court at any time to be more than 12”.

This is a very significant alteration to the 2005 Act. There should be no attempt to tuck alterations into the back of a much wider Bill such as this one. It is highly doubtful whether this particular alteration should be adopted at any time, and I agree with the proposal from the noble and learned Lord, Lord Lloyd of Berwick, to leave out paragraph 2.

--- Later in debate ---

[Lord Falconer of Thoroton]

Our problem is that if I talk about the tie break, it is before the noble and learned Lord, Lord Lloyd, has made his points about why the tie break is wrong. The natural sequence of events is that I speak, then the Minister, we do not put a question but go round again, which is perfectly okay in Committee. If everybody is happy, that is the right course that I would envisage. A preliminary point: initially, I thought the noble Lord, Lord Goodhart’s, point was that the Constitutional Reform Act 2005 was such an important Act that it could never be amended. I tended to agree with that proposition. As I understand it, and I agree with this, he then went on to say that when a Bill makes a significant constitutional change, it is wrong to put it in the form of a schedule introduced by a section which does not, as it were, preview that it is a major constitutional change. The right way to make major constitutional changes, so that this House—which has a special responsibility in relation to constitutional changes—is aware of what is going on, is by an individual Act of Parliament.

I agree with the noble Lord, Lord Goodhart, in relation to this because here we are dealing with an important constitutional issue as regards the position of judges. Like the noble Lord, who is a practical and sensible Member of this House, I fear that we are where we are. We are in Committee and it is obvious that we will pass something along the lines of Clause 18 and Schedule 12. Therefore, it is necessary for us to debate the merits of those. But it is extremely important that the Government recognise that where one is dealing with important constitutional issues, it does not in any way inhibit any programme of constitutional change, it just means it is right that it is properly flagged up so that we know where we are.

[Lord Goodhart]

My Lords, I am very grateful to the noble and learned Lord. That is exactly the view I have taken today.

[Lord Falconer of Thoroton]

I support the noble Lord, Lord Goodhart, in what he says but, as a matter of practicality, I recognise that we have to move on. The noble Lord, Lord McNally, is much loved around the House and a genuine supporter of sensible constitutional change. He was a significant supporter of the Constitutional Reform Bill in that he allowed it to go through in circumstances where it might not otherwise have gone through, so I have a particular personal reason for believing that the noble Lord is a supporter of constitutional change. It would be worth while if he could say something in response to the noble Lord, Lord Goodhart.

We are dealing with three tiers of part-time judge: first, the High Court of England and Wales; secondly, the Court of Appeal of England and Wales; and, thirdly, the Supreme Court, which is part of the UK judiciary. The average age at which persons are appointed to the High Court of England and Wales is between 45 and about 60. In the Chamber tonight, we have two former High Court judges. The noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Woolf, were both appointed at the age of 45, which is at the youngest end of the range.

In appointing women between the ages of 45 and 50, it is extremely likely that they will have caring arrangements. I know that from my own experience as someone at the English Bar and as someone appointing judges. The difficulty for people is in making a choice as to what they put as their priority. As the noble and learned Baroness, Lady Butler-Sloss, rightly said, the current attitude is that it is “full on” if you join the High Court and there are no dilutions. The consequence of that in relation to the High Court is that a significant pool of people who would otherwise be willing to be appointed is being lost. I know that from my own experience in appointing judges.