Crime and Courts Bill [HL]

Lord Mackay of Clashfern Excerpts

Tuesday 4th December 2012 Lords Chamber

[Lord McNally]

No: it is not prescriptive and we would test and think very carefully about how it would be approached. Some of the points that have been made this afternoon will be taken into account in seeing how this will apply. I reject the idea that this is a gesture without substance, as the noble and learned Lord, Lord Woolf, suggested. The noble Lord, Lord Pannick, quoted the Constitution Committee’s findings which bear repeating,

“as the minimum change necessary. For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working and the taking of career breaks which we believe is currently lacking”.

Salaried part-time working has been in place in the courts below the High Court and tribunals for a number of years and it is important that we do not allow a known glass ceiling to remain in place preventing part-time judicial office holders from progressing further up the judicial career ladder. These provisions do not mandate that there must be an office holder who works part-time in either the Supreme Court or Court of Appeal; instead they remove any impediment that would prevent eligible candidates who work flexibly in the lower courts from applying for appointments to those courts.

There would be something problematic in a situation whereby the most meritorious candidate for the Court of Appeal or the Supreme Court was not able to accept an offer of appointment simply because we could not accommodate part-time working. In the 21st century that would be hugely embarrassing and, quite frankly, wholly at odds with the change in culture we are all seeking as the key driver towards a more diverse judiciary.

Some have argued that the work of these higher courts naturally precludes the ability of judges to work flexibly. It has been suggested that flexible working would disrupt the processes of the court and make life difficult for listing officers. The Lord Chancellor is not persuaded by this argument. The Lord Chief Justice was questioned on this very issue when he gave evidence before the Constitution Committee. He did not see any problems with organising sitting patterns in order to accommodate judges with caring responsibilities.

The Government’s consultation on judicial appointments and diversity focused on flexible working in the High Court and the Court of Appeal. The proposals received near unanimous support. However, a number of key stakeholders also highlighted in their responses that extending the principle of flexible working to the Supreme Court would demonstrate our commitment to improving diversity to those considering applying and we have therefore extended our proposals accordingly to include the Supreme Court.

Given the strong support for the provisions within the House and beyond I invite the noble and learned Lord, Lord Lloyd, to withdraw his amendment. However, if he is minded to test the opinion of the House, I urge noble Lords not to support the amendment.

[Lord Mackay of Clashfern]

For clarification, who would decide the nature of the appointment when a vacancy arises in, say, the Supreme Court? Would it be for the president of the Supreme Court to say, “I will take two part-time judges who will each sit half-time”, or would it be somebody else who would decide? It is a practical matter. I can see the arguments about it all and I see the general view in this House, but I would like to know how it would work in that sense; who would have the responsibility, ultimately, of saying what would be the pattern in a particular court. Is it the president of that court or somebody else?

[Lord McNally]

My Lords, as far as I understand, the process of appointment would be exactly as it is now. If, in the process of discussing a candidate for the Supreme Court, it became obvious that there was a candidate who would require flexibility in order to take up the appointment, that would be taken into account. But there is no question of the president of the Supreme Court, or anybody else, being ordered to take a part-time member because of this provision. It is there to give what it is hoped will be encouragement to those who have responsibilities outside their judicial responsibilities, so that they do not find that a bar to progress, but there is no special process of selection envisaged in this.

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[Lord Deben]

My Lords, it would be a great mistake to do this if we did not have to. The problem is that we have to, because the present situation is not acceptable. No business could be run on this basis. You would have shareholders, even of the most reactionary kind, asking how on earth it was possible to run a major business in which there was one woman, on the basis that you had to have one. I very much appreciate the words that have just been said.

As I said on a previous occasion, if we did not need it, we would not have to do it but because we need it, we have to do it. I know that that sounds odd, but it seems the only answer to the Government’s argument so far, which I do not understand. I do not understand why it is sensible to do this at some points but not at others. That does not seem very sensible either. Surely it has always been best to do it at the top first, then all the way down. You do not do it at the bottom, and then hope it goes up. It is like having girls come into a boys’ school. It is a very odd system but when you want to open up a school you start at the bottom and the number of girls gradually goes up, until you have a mixed school at the top. I say that as the father of four children, two boys and two girls, none of whom went to mixed schools, but I know how they work and that is how you do it.

However, that does not mean that when you are dealing with the law you set a very good example by suggesting that it is not the same at every level. I am interested only in why that should be the case. I have listened to the Government’s arguments and no doubt if I have to listen again, I may be persuaded. Up to now, however, I am missing the logic. I would like to see a logical reason why this proposal should not be there, or why the other bits that are there should not be removed. That is the alternative: if we do not need this, why do we have the bits that we have?

I will say one last word about the addition to the Bill. The noble Baroness made a very good point about how long this is. There are many things in the law that could be removed to make room for this, and I can give a long list of them. For example, there is a part that makes it illegal for Roman Catholic churches to ring a bell. That is much longer than this bit; we could take that out and put this in quite happily. If, therefore, there is a question of overburdening, I can think of a series of overburdens that can be removed—so that argument does not work. I ask the Government to understand that by not doing this, a signal is being made. By doing it, a signal would also be made. I do not understand why they want to make the wrong signal.

[Lord Mackay of Clashfern]

My Lords, I had some experience of trying to push this agenda forward rather a long time ago but I wonder about, for example, creating a duty on the present Lord Chancellor to do this. What does this amount to? I have a feeling that the argument that has been presented suggests that you should make the duty incumbent on all the judiciary at all levels, so that they welcome diversity. That is my answer to the noble Baroness, Lady Kennedy of The Shaws. There is a limit to what the Lord Chancellor can do to change the culture now, with his present powers. There is also some question as to what the Lord Chief Justice can do, though he can be welcoming and so on. The logic of it is for the whole judiciary to be required to welcome diversity and all the benefits that it brings.

[Lord Beecham]

My Lords, I am fascinated, not to say a little distracted, by the zoological references to pregnant snails. I am not quite sure how one could tell, unless one was another snail. Perhaps I ought to address myself to the amendments rather than to this curious analogy.

I certainly support the thrust of the amendment of the noble Lord, Lord Pannick. Amendment 86DA, which is in my name, sets out a process; I should indicate to the noble Lord that perhaps the drafting is not quite as it should be. However, subsection (4) in my proposed new section 64A, which states:

“These duties shall continue for five years, but may be extended for five year terms by order”,

relates to its subsection (3) on the question of annual reports, rather than the principal objectives of that amendment, which are set out in subsections (1) and (2).

Several of your Lordships have pointed out the importance of making progress in this critical area. The noble and learned Lord, Lord Mackay of Clashfern, suggests that the duty should be spread wider, but it is difficult to envisage a duty on the holder of a judicial office to promote diversity in that capacity. It is surely a matter for those with greater responsibility at the top of the pyramid, both politically and judicially—the Lord Chancellor and the Lord Chief Justice, in addition to the commission—to have that duty. It is presumably easier to hold them to account in a less informal way than it would be to hold the whole judiciary to account.

I hope that the Government will accede to the arguments made by noble Lords and noble Baronesses. This is not a dramatic amendment, but it underpins the process that your Lordships have clearly adopted and wish to see implemented. It is a matter on which I should have thought the Government could concede without any kind of embarrassment because it carries out effectively the thrust of the policy on which the majority of the House are clearly agreed. I therefore hope that the Minister can agree to that or, at the very least, give it some further thought and come back at Third Reading. It would be better not to have to vote on this matter, given that there is a great deal of common ground. I am looking to the noble Lord to be as co- operative on this occasion as I was on a previous occasion.

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[Lord Pannick]

I thank the Minister for reverting to the important Amendments 83, 84 and 85. As the noble Lord mentioned, your Lordships’ Constitution Committee was critical of the proposal in the Bill for the Lord Chancellor to sit as a member of the appointments committee appointing the Lord Chief Justice and the President of the Supreme Court. The Minister's advocacy in Committee was outstanding but, as he will know, sometimes the best advocacy is in support of a completely hopeless cause. I genuinely thank the Minister and the Lord Chancellor for listening on this important subject. It is a matter of constitutional concern. I thank them for bringing forward amendments to the Bill in accordance with the recommendations of your Lordships’ Constitution Committee.

[Lord Mackay of Clashfern]

I wonder whether it is worth mentioning that, of course, the Supreme Court is of interest in jurisdictions other than those in which the Lord Chancellor has authority now, and there may be a question about the balance of that. Admittedly, other jurisdictions have representation on the selection committee, but it may be worth while keeping in place that balance.

[Lord Beecham]

My Lords, I endorse everything that the noble Lord, Lord Pannick, said, as a surrogate for my noble and learned friend Lord Falconer. Had he been here I am sure that he would have enthusiastically congratulated the Government on their change of heart. Again, I rather tiresomely congratulate the Minister on accepting the wisdom of the House as previously expressed. We welcome this change and reversion to what is essentially the current situation. We look forward to more of the same as we go through the Bill.