Crime and Courts Bill [HL]

Debate between Lord Goodhart and Lord Woolf

Monday 25th June 2012 Lords Chamber

[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.