Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012
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Crime and Courts Bill [HL]
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Lord McNally
“Transfer of immigration or nationality judicial review applications
(1) In section 31A of the Senior Courts Act 1981 (transfer from the High Court to the Upper Tribunal)—
(a) in subsection (2), for “, 3 and 4” substitute “and 3”,(b) omit subsection (2A),(c) in subsection (3), for “, 2 and 4” substitute “and 2”, and(d) omit subsections (7) and (8).(2) In consequence of the amendments made by subsection (1), section 53(1) of the Borders, Citizenship and Immigration Act 2009 is repealed.”
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this amendment will remove restrictions contained in Section 31A of the Senior Courts Act 1981. It will enable applications for or permission to seek judicial review in immigration, asylum and nationality cases to be transferred from the High Court in England and Wales to the Upper Tribunal.
As noble Lords will be aware, this House has considered this issue before. In 2009, the House thought it appropriate to allow the High Court to transfer fresh claim judicial reviews to the Upper Tribunal. These are judicial reviews that relate to a refusal by the Home Secretary to treat further submissions as fresh asylum or human rights claims on the basis that they are not significantly different from the material previously considered. These cases have been heard in the Upper Tribunal since October 2011 and the process is working well. This amendment would potentially enable any class of immigration, asylum or nationality judicial review to be heard in the Upper Tribunal.
The further categories of cases that would be transferred to the Upper Tribunal would have to be set out in a direction, or directions, made by the Lord Chief Justice with the agreement of the Lord Chancellor under the provisions in the Constitutional Reform Act 2005. We envisage that the transfers will take place in a staged fashion to increase slowly the types of judicial review dealt with by the Upper Tribunal. The ability to transfer such cases would play an important role in improving access to justice. Immigration and asylum judicial review cases currently form a high proportion—around 70%—of the caseload in the administrative court. The total number of these cases has doubled in the past five years, with around 8,800 being received in 2011. Many of these cases are relatively straightforward. This volume of cases is unsustainable for the administrative court. It keeps High Court judges from other complex civil and criminal cases that they should be hearing. It has created a backlog and has added to waiting times for all public law cases heard by the administrative court.
I recently met the president of the Queen’s Bench Division and the president of the Upper Tribunal immigration and asylum chamber to discuss the progress that has been made in the Upper Tribunal since it was created in 2010. I am persuaded that it now represents the most appropriate venue for the majority of judicial reviews of this type. As the avenue for appeals against a decision of the First-tier Tribunal, the Upper Tribunal deals with thousands of appeals each year. Since acquiring this jurisdiction it has received nearly 200 fresh claim judicial reviews, which have been dealt with more quickly. Fresh claim cases are on average dealt with in seven weeks, compared to an average of 11 weeks for the administrative court. This has not been at the expense of quality. The judges who sit in the Upper Tribunal have a high level of expertise, particularly in relation to in-country conditions and human rights implications, and are regularly joined by judges of the administrative court.
The Upper Tribunal’s expertise in the field of asylum and country guidance cases has been recognised by the higher courts in the UK and the European Court of Human Rights. It is able to make well informed decisions that will deliver justice in these types of judicial review cases, in the same way as the High Court has done in the past. I beg to move.
Lord Avebury
My Lords, this amendment would allow judicial reviews of immigration and asylum cases and nationality matters to be transferred from the High Court, where judicial review is currently heard, to the Upper Tribunal, as my noble friend has explained. To many of your Lordships, this must feel like Groundhog Day. Parliament made clear its views on whether JRs should be transferred from the High Court into the tribunals once in 2007, during debate on what is now the Tribunals, Courts and Enforcement Act 2007, and again in 2009, during debates on what is now Section 53 of the Borders, Citizenship and Immigration Act 2009. It has said no and has said so powerfully. The arguments against the Upper Tribunal being entrusted with this responsibility still hold good.
The 2007 Act established a new regime, bringing together several tribunal jurisdictions into one structure comprising the First-tier Tribunal and the Upper Tribunal, or UT for short. The Act allowed for the transfer of certain JR applications from the High Court to the UT but, as a result of amendments made during its passage, excluded immigration and nationality JRs from the cases that could be transferred. Parliament returned to this matter, as my noble friend has reminded us, in 2009 during debates on the then Borders, Citizenship and Immigration Bill and again rejected a proposal that would permit the wholesale transfer of immigration and nationality JRs.
The compromise reached was that a JR concerned with a decision on a fresh claim for asylum—that is, one made after an earlier claim and any appeals against its refusal had finally been rejected—was made transferable. Since 2009, the once separate Asylum and Immigration Tribunal has been transferred into the two-tier structure, with an immigration and asylum chamber in the First-tier Tribunal and in the UT. Meanwhile, on a case-by-case basis, the High Court has transferred a few JRs against local authorities concerning the age of separated children seeking asylum to the UT where they have ended up in the immigration and asylum chamber. However, age-dispute JRs can be transferred because they are not decisions about immigration or nationality and are therefore not affected by the 2007 Act. These cases start in the administrative court, but can be transferred to the UT on a case-by-case basis. There have been only four reported cases to date.
Fresh-claim JRs are transferred as a class. There are no reported cases yet and only one case that the tribunal was to hear. The UT has no experience of hearing JR cases so there is no way of assessing whether it is likely to cope well or badly with them. Meanwhile, although there is power to transfer fresh-claim judicial reviews from the Outer House of the Court of Session in Scotland to the UT, that power has never been exercised. I can do no better than cite the comments of the late Lord Kingsland on Report on the Tribunals, Courts and Enforcement Bill. He said,
“first, the Government have broken their promise to your Lordships’ House not to introduce primary legislation permitting the transfer of judicial review matters in asylum and immigration cases until we have sufficient evidence that the system for judicial transfers in other classes of case are working well. Secondly, the Opposition and the noble Lord, Lord Thomas of Gresford, would be extremely unhappy to permit such transfers unless we were satisfied that the transferred AIT single-tier regime to the Upper and Lower Tribunals did indeed have the effect of leading to much fairer and more timely decisions, thus reducing substantially the overall number of judicial review cases … Thirdly, as I have indicated, judicial review is a crucial component in the struggle to protect the individual. Many of these cases raise issues, at best, of the freedom of the individual and, at worst, of torture and death. It is vital that it remains open to someone in such cases to have the application heard by a High Court judge”.—[Official Report, 1/4/09; cols. 1126-27.]
There is no such evidence yet. Powers to transfer JRs into the UT are being sought when it has done only a handful of age assessment cases and has not built up any track record whatever in dealing with fresh-claim JRs. High Court judges have sat in the UT, but there are also judges in that chamber who were adjudicators and special adjudicators of the former Immigration Appellate Authority and its successors. They have never heard cases outside the immigration and asylum tribunal jurisdiction, but the amendment would allow them to deal with JRs on which they have zero experience.
Speaking for the then Government in 2007, the noble Baroness, Lady Ashton of Upholland, accepted that JRs in immigration cases were particularly sensitive. The point was underlined by a forceful observation from the noble and learned Baroness, Lady Butler-Sloss, in Grand Committee in 2006. She said:
“I support my noble and learned friend Lord Lloyd of Berwick in relation to the requirement to have someone of the level of a High Court judge to hear a judicial review in the tribunal. It would be invidious for there not to be a judge of that rank dealing with it. I support my noble and learned friend very strongly”.—[Official Report, 13/12/06; col. GC 68.]
Then there was the noble and learned Lord, Lord Lloyd of Berwick, who said at Second Reading of the Borders, Citizenship and Immigration Bill:
“If the effect ... is that the administrative court would be bound to transfer judicial review applications in all immigration cases, I would be strongly opposed to it”.—[Official Report, 11/2/09; col. 1142.]
The then Minister, the noble Lord, Lord West, winding up that debate, said that,
“the senior judiciary are very supportive of the clause”—[Official Report, 11/2/09; col. 1211.]
that is, the clause providing for the transfer—which he said was shown by the responses of the President of the Queen’s Bench Division, the Master of the Rolls and the Senior President of Tribunals to the consultation on immigration appeals. However, the Master of the Rolls had merely indicated that he supported the views of the President of the Queen’s Bench, who in turn stated that proposals for transfer of JRs in general were welcome, but emphasised that:
“Some of them are plainly suited to the Administrative Court and should remain there”.
The Senior President of the Tribunals agreed with him. The Court of Session judges did not welcome the proposal. They said that,
“any decision as to a more general transfer of judicial review jurisdiction in this area—
immigration—
“should be made only once the Upper Tribunal has gained extensive experience of implementing its proposed remit”.
No such extensive experience has been gained. Others, including the Immigration Law Practitioners Association, the Constitutional and Administrative Law Bar Association, the Glasgow Immigration Practitioners’ Group, the Law Society, the Refugee Legal Centre, the Refugee Council and individual lawyers, have expressed views similar to those of the judges of the Court of Session.
Lord McNally
My Lords, I am very grateful to the noble Lord, Lord Beecham, for that indication of the Opposition’s support for this amendment. I gladly give him, and the noble Lord, Lord Avebury, an assurance that what we are doing will be kept under review in close consultation with the judiciary.
It is true that this matter was discussed in 2009, as the noble Lord, Lord Avebury, said, but we have now had three years’ experience of the workings of the Upper Tribunal in these areas and we have also had representations from the senior judiciary about how the present system is clogging up the High Court and bringing some of the pressures to which the noble and learned Lord, Lord Woolf, referred.
I have not taken lightly the decision to bring this back to the House. In a meeting, the president of the Queen’s Bench Division and the president of the Upper Tribunal convinced me of two things: first, that we would be taking some pressure off the High Court and High Court judges by doing this; and, secondly, that by moving these cases to the Upper Tribunal we would in no way diminish the quality of justice available. On the contrary, as the noble and learned Lord, Lord Woolf, indicated, a great deal of the expertise for judging these cases is in the Upper Tribunal.
I take the point that the noble Lord, Lord Avebury, made about the UK Border Agency’s withdrawals. There are varied reasons for cases being withdrawn but, coupled with other government reforms, we are getting a better system for dealing with these cases from the UKBA. The senior judiciary is broadly in favour of the amendment as a sensible solution to the backlogs in the High Court and an opportunity to transfer cases to the most appropriate part of the justice system. There has been strong judicial involvement in the discussions preparing for this amendment, and the judiciary is keen to ensure that it is successfully introduced. As the noble Lord, Lord Beecham, said, the Lord Chief Justice will be closely involved with the Lord Chancellor in gauging the pace of movement on this so that we get the twin benefits of faster, efficient, high-quality justice in immigration cases and some elbow room in the High Court to deal with the important cases that the noble and learned Lord, Lord Woolf, mentioned.
I hope the noble Lord, Lord Avebury, will be content to take those assurances and to accept that this decision has been taken on the basis of the experience of the past three years, which we believe is entirely favourable to the move that we are making. That is coupled with the assurance that we will keep the matter under review and will be in close contact and consultation with the senior judiciary to ensure that the move is completely in keeping with the access to good justice that is the aim of this amendment.
Lord Avebury
My Lords, can my noble friend answer the question I put to him about how many cases were withdrawn by the UKBA—to correspond with the figures I gave for 2006 and 2007? If a very large number are being withdrawn, and thus the UKBA is conceding that the original decision was wrong, surely that proves that there are other methods of reducing the pressure on the High Court rather than transferring all these cases to the tribunal.
The Earl of Sandwich
My Lords, I am not sure that the Minister answered the point made by the noble Lord, Lord Avebury, about the relative inexperience of the Upper Tribunal in immigration. He quotes the wise and the good, and we have heard from the noble and learned Lord, Lord Woolf, but surely we are not making a decision on the basis of advice only but on the actuality of the court over the period.
Lord McNally
The point was made that the Upper Tribunal over the past three years has demonstrated very clearly that it has both the experience and the expertise to deal with these matters. The Upper Tribunal’s expertise in reducing backlogs in the Administrative Court has been demonstrated. I do not have the most up-to-date figures on UKBA withdrawals, but in my closing remarks I accepted that one issue was the UKBA’s tendency in the past to withdraw objections. Reforms that are being taken forward by my right honourable friend the Home Secretary aim to deal with some of those criticisms of the UKBA.
However, that does not take away the central thrust of this proposal that since 2009 the Upper Tribunal has shown itself to be working well, and we are not rushing our fences in this case. Both the Lord Chancellor and the Lord Chief Justice will be closely involved in gauging the movement of cases to the Upper Tribunal, but no one has seriously doubted its competence or expertise to deal with these matters. On the contrary, it has shown itself to be remarkably efficient at cutting time for dealing with cases, which must be in the interests of justice.
Lord McNally
Lord McNally
Lord McNally
My Lords, these amendments all relate to the provisions on the deployment of the judiciary. Of particular note is Amendment 140, which introduces an emergency procedure regarding the appointment of deputy judges of the High Court when there is an urgent need to do so. The Bill introduces a Judicial Appointments Commission process for appointing deputy High Court judges and authorising circuit judges and recorders to sit in the High Court. This is an important reform to increase transparency regarding these appointments.
Amendment 140 would deal with situations where there is an urgent and unforeseen demand for a deputy High Court judge and it is not practicable to draw on any judges of the High Court or any of those who have been selected previously by the Judicial Appointments Commission, or to deploy any other judge who is authorised to sit in the High Court or Crown Court in the time available.
The amendment inserts new Section 94AA into the Constitutional Reform Act 2005. The purpose of this new section is to specify clearly circumstances in which the normal Judicial Appointments Commission selection exercise may not be applied in the appointment of a deputy judge of the High Court for a definite period. This may be needed in exceptional circumstances, such as a number of judges being unwell or suffering some other unexpected misfortune, meaning that a particular area of expertise is required at short notice. The amendment specifies what criteria must be applied if the Judicial Appointments Commission is not to select deputy judges of the High Court. It also clearly limits the duration of the appointment to the disposal of the particular business that gave rise to the use of the power.
Amendment 145 inserts a new Part 3A into Schedule 13 of the Bill. The new part deals with the deployment of judges to the Court of Protection. Our new deployment policy has been applied in this jurisdiction and all judicial officeholders are now able to be nominated to sit in the Court of Protection, including deputies and temporary appointees. Of course, in this and all jurisdictions, judges may be deployed only if the Lord Chief Justice determines that the judge possesses the necessary expertise and experience and deems in all other circumstances that it is appropriate for that particular judge to be deployed to that specific jurisdiction. In this jurisdiction, there has been a particular difficulty in ensuring that the court is fully resourced with judges that have the necessary skills and ability to hear these complex and often difficult matters. The amendment enables the Lord Chief Justice to provide appropriate judicial resources from a broader pool of candidates; it also widens the group of judges who can be appointed to act as the senior judge of the Court of Protection, handling certain administrative functions to that court.
The other amendments in this group on judicial deployment are either consequential or drafting amendments to ensure that we have made all the necessary changes and adjustments to Schedule 13 of the Bill. I will not detain the Committee further with this group of amendments, but I can provide further details of these amendments if needed. I beg to move.
Baroness Butler-Sloss
Perhaps I could ask the Minister what may be a rather stupid question. Unfortunately, I do not have the Mental Capacity Act in front of me, but I assume that the President of the Family Division and the judges of the Family Division and the Chancery Division are still on the list of those who will be trying these cases, as they are usually the judges who do it.
Lord McNally
I tread on very thin ice, but I think that I can assure the noble and learned Baroness that that is the case. If not, I shall make sure as soon as possible that the Committee knows that I am wrong.
Baroness Hamwee
I want to ask my noble friend a question about Amendment 140. He described the circumstances and need for flexibility in the ability to appoint temporary High Court deputy judges. I would like to ask about the business for which they would be needed, in proposed new Section 94AA(2)(a), which refers to both an “urgent need” and the “disposal of particular business”. He mentioned the need for special expertise, but has he any further examples of what the “particular business” might be? I take it that we are not being asked to agree to temporary appointments to deal with urgent business per se. It is the term “particular business” that interests me. I could have pictured this clause better if it did not refer to “particular business” but to “business” in general. I am sorry that I did not give the Minister notice of the question. He may wish to come back to it at a later point.
Lord McNally
I, too, am rather sad that my noble friend did not give me notice of the question. I am pleased that we are bringing in a role for the Judicial Appointments Commission in the appointment of deputy High Court judges. To put it bluntly, there was a suspicion in some areas that the appointment of deputy High Court judges was the last surviving remnant of the “tap on the shoulder” system of appointments. Therefore the proposals to bring the appointments commission into the process are important.
However—I say this in the presence of the noble and learned Lord, Lord Woolf, with all his vast experience—we were determined not to put the Lord Chief Justice of the day into a straitjacket. He has to be responsible on a day-to-day basis for deploying the judiciary and, if there is a need to appoint a deputy in an emergency, we should have the ability to do so. Hence, in introducing the provision, there are many references to exceptional circumstances and a definite period so that this emergency procedure would not lead, again, to a way of appointing deputy High Court judges by a tap on the shoulder. It leaves the Lord Chief Justice of the day with the wriggle room to deploy efficiently but makes sure that the main appointment of deputies now comes within the ambit of the Judicial Appointments Commission.
As for specific examples, the best I can do is to write to my noble friend giving her some examples, which I hope will reassure her. I shall, of course, put a copy of the letter in the Library of the House for the benefit of the Committee.
Baroness Turner of Camden
Fairly recently I asked questions in the House about employment tribunals and I was told by the Government that an investigation into them was currently proceeding and that we would be told the results in due course. Does the change of title listed in Amendment 146 from “chairmen of employment tribunals” to “Employment Judges” form part of that general investigation?
Lord McNally
Yes, my Lords, it is part of the general process of reform at both the tribunal level and in other parts of the judiciary. So there will be employment judges from now on.
Lord Thomas of Gresford
Perhaps I may help my noble friend by illustrating the kind of particular business there could be. In the old days it was not so much a tap on the shoulder as a ring-round by the Lord Chancellor’s Department to find someone who could go and do particular cases on very short notice. I recall being asked to go to Leeds with the inducement that I could stay in the judges’ lodgings—not much of an inducement, I may say—to try three large medical negligence cases. They said, “Don’t worry, they’ll all settle”. In fact, they all stood up. That is the sort of instance when counsel on both sides are all ready to go ahead on a fixed date but there is no High Court judge to take it. Everybody assumes that the cases will settle but they do not.
Lord McNally
Not for the first time when I find myself out on the thin ice, my noble friend supplies a plank for me to walk back to dry land. I thank him for that intervention.
Lord Beecham
I am glad that the noble Lord is not emulating Rasputin in terms of his trips across the ice.
The Opposition do not take issue with the amendments but it is interesting that in a move to simplify the system we have a complex series of amendments. They add several pages to Schedule 13. By sheer chance today, a Mr Patrick O’Brien, a research associate of the Constitution Unit, has written a blog—I suppose that is what it is—about the issue of judicial appointments under the Bill. He makes the point:
“The new system in its entirety will, if anything, be even more complex than the present arrangements. It will be a hydra with three heads—the Lord Chancellor, Lord Chief Justice and the Senior President of Tribunals (and indeed five heads if you include the formal roles of the Prime Minister and the Queen), all of whom will have roles in approving appointments of various types—and at least five variants of appointment commissions/panels in addition to the JAC. There is the potential for further variations on these commissions/panels though the use of regulations. As things stand, the use of regulations in the Bill adds complexity and uncertainty to the CRA rather than removing it”.
Can the noble Lord give an indication of when, if at all, regulations will be introduced and what they might cover? Mr O’Brien goes on to say: “The CRA”—Constitutional Reform Act—
“is not just addressed to civil servants”—
or Members of your Lordships’ House or indeed the other place. He continues:
“It has constitutional significance and”,
should be,
“comprehensible to the general public”.
The noble Earl, Lord Attlee, referred to improvements in satnav technology when he was answering a Question on transport earlier. The implication of Mr O’Brien’s article is that we need the equivalent of satnav to navigate through this complex field of appointments. Having said that, we do not object in principle but it would be helpful if a guide were available to the public as well as to the practitioners so that they can see how the new system is supposed to work. Again, as with the previous amendment, I assume that the Government will be monitoring developments and will ensure that problems are dealt with in due course.
Lord McNally
My Lords, I am extremely grateful to the noble Lord, Lord Beecham, for his indication of support and for some sensible suggestions that I hope will assist the Committee. We will be publishing draft regulations before Report. The idea of a simplified guide on how these will impact is very sensible and I will take that back to my right honourable friend the Lord Chancellor. Amending existing legislation can be extremely complex when fitting in new proposals to existing legislation.
The noble and learned Lord, Lord Falconer—I was going to say my noble friend—along with the noble and learned Lord, Lord Woolf, showed a certain pride of authorship in the new disposition of our legal system after the reforms of the earlier part of this century. What we are trying to do, in our different ways, is build on reforms that have given us an effective system. These include promoting greater diversity in our judiciary. As we were discussing the other day, we are also conscious of the important nexus of the system, with the President of the Supreme Court, the Lord Chief Justice and the Lord Chancellor.
Lord McNally
Crime and Courts Bill [HL]
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Lord Falconer of Thoroton
If the Lord Chancellor said “I want this candidate” and persuaded everybody, none of that would have been apparent. People would doubt the independence of the appointment from the political situation, or the political influences on the position. Do not be under any illusion; if the Lord Chancellor proceeds with this proposal, those people who have had dealings with the constitutional settlement will think that he is, without properly understanding it, going against the basis of the constitutional settlement which the noble Lord, Lord McNally, worked so hard to get through. As he said on Monday, the noble Lord, Lord Goodhart, was one of the main Liberal Democrat architects of the constitutional settlement, as was, as he also acknowledged on Monday, the noble and learned Lord, Lord Woolf. What on earth is the reason for so undermining the political independence of the judiciary?
For these reasons we support the amendments that are being made. If, as I think is unlikely, they are put to the vote today, we will support them. I earnestly ask that the Minister reconsiders the Government’s position on this, and the Lord Chief Justice’s position. It would be a really bad idea if people thought that a Conservative or Labour Secretary of State for Justice, not the Lord Chancellor, had appointed the Lord Chief Justice and the president of the Supreme Court.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to those who have taken part in this, which is an interesting and important debate on a very important constitutional issue. I am not sure that I share the analysis of these proposals. As I said before, the Lord Chancellor is determined to defend the separation of powers and the independence of the judiciary. We are committed to the constitutional settlement that was brought in by the noble and learned Lord, Lord Falconer, when he was in office. But, as I said earlier, we are making proposals which, with the passage of time, improve on that settlement. The debate today is part of that.
Interestingly enough, I was flicking through Hansard for Monday evening. The noble and learned Lord is always passionate and eloquent, but he was particularly passionate and eloquent then. He was urging us not to take the Executive out of decisions on appointments in the lower courts. Well, that is what it says.
Lord McNally
Yes. Perhaps the noble and learned Lord would like to turn to column 112 of the Hansard of 25 June when, as I say, he was quite passionately making the case for the Executive being involved.
Lord Falconer of Thoroton
Indeed I was. The noble Lord, Lord McNally, was agreeing with me that the way you do it is to have an independent process of appointment which the Executive must endorse, or not, so that there is somebody responsible in Parliament to defend it. Does the noble Lord agree with that approach?
Lord McNally
The noble and learned Lord was saying that the Executive should be kept in the process. The noble and learned Lord is marvellous; he spends half his interventions twisting the words of people who disagree with him, and when anybody tries to put him right, he starts protesting.
Of course the Lord Chancellor is accountable to Parliament. That is central to the settlement. He is responsible to the public for the overall process of judicial appointments and the effective working of the judicial system. It is important, at this very senior level of the judiciary, that as well as possessing first-rate judicial skills, candidates for the leadership roles are alive to the management and administrative issues that affect the administration of justice and are able to work with the Government on developing the system. This is an area where the view of the Lord Chancellor is likely to be of particular importance. This is therefore a legitimate role for the Lord Chancellor to play in the most senior judicial appointment.
I know that the noble and learned Lord has a kind of sense of ownership of the constitutional settlement.
Lord McNally
Well, if he is happy to change it, perhaps he will listen to the argument for making just the smallest tweak in the perfect construction that he left for us. That means that it should be balanced appropriately against judicial and lay input into the process. It should respect, as I have said, the independence of the judiciary.
Lord Falconer of Thoroton
Lay input is how you get management experience, I agree. What is wrong with the non-legally qualified person, the member of the Northern Ireland commission, the member of the Scottish commission and the member of the English commission? There is a quite substantial balance of lay people already.
Lord McNally
We had a very vigorous discussion about this when we had a second go in front of the Constitution Committee. Looking at those three top jobs—the presidency, the Lord Chief Justice and the Lord Chancellor—I was struck by the fact that it is not just judicial excellence but a whole fingertip interrelationship that makes those three jobs work. That is why the Lord Chancellor is arguing, and I am convinced of this—it is not just a matter of me saying, “The Government believe”—that an input into the selection process at the selection board—
Lord Woolf
I speak as one of the three the Minister refers to. Does he not agree that there is a danger of those three being too cosy? That would be in a situation where they do not feel that they can take a separate line from the Lord Chancellor, who controls the resources and is particularly powerful. All I can say is that if he does take that view, he should remember that my very distinguished predecessor, on one particular occasion, refused to see the Home Secretary of the day and the Home Secretary was deeply offended. That was because he did not think much of that sort of cosiness, which I know to the Minister is very attractive. With my experience, I am bound to say that he is wrong. He should listen; there are times to be cosy and times not to be cosy. That is something that needs to be taken into account.
Lord McNally
This is my problem as a simple lad dealing with these Silks. I have never used the word “cosy” about the relationship. I have had a chance look at the relationship in the last two years; the last way I would describe the relationship between the Lord Chancellor, the noble and learned Lord, Lord Judge, and the noble and learned Lord, Lord Phillips, is “cosy”. It is businesslike; it is working; but it has an interrelationship which I think is important.
Giving the Lord Chancellor a role in these appointments is not new. As has been said, he already has a role in deciding whether to accept or reject the recommendation of a selection panel. The question is, therefore, how should that input be realised? I understand the different views put forward in the debate, but the Government’s view is that, for these two most senior appointments, given their significant role in the administration of justice, the most appropriate way of achieving this input is to allow the Lord Chancellor to sit on the panels. He can then consider the views of other panel members, submit his own views and engage with the panel members in a meaningful discussion about candidates.
The current system allows the Lord Chancellor to veto a selection panel’s recommendations. This is in itself a major role, but may be viewed as something of a nuclear option—that is what it says in my briefing notes. I think that that option is the one that could only be used in exceptional circumstances and with potentially a heavy price for the relationship with the judiciary and perception of political interference. I do not necessarily agree that these perceptions would be justified, but they are certainly factors which would inhibit the use of the veto. In place of the veto, Schedule 12 provides for a more effective engagement.
A fear has been expressed that this would give the Lord Chancellor disproportionate influence and that the present Lord Chancellor would dominate the proceedings. Perish the thought. Being on the panel, or even having that Lord Chancellor on the panel, would not necessarily mean that the Lord Chancellor would ultimately get his way on the individual appointed, but it would mean that he would have the opportunity to be engaged in the process and make his views known to the other panel members. We are talking about a panel of heavy hitters—a lay chair, plus senior members of the judiciary and appointment commissioners who are strong and independent-minded individuals. They will not simply fall into line with the Lord Chancellor of the day. The Lord Chancellor would have an opportunity to make his case but could also be persuaded of a contrary case by other panel members. However, where the Lord Chancellor does make a persuasive case of the merits of a particular candidate, this could be weighed in the balance in the same way by other panel members.
There are, of course, other possible ways of securing the input of the Lord Chancellor, but we do not consider that any are as effective as our proposal. We could, for example, allow the Lord Chancellor to select a candidate from a shortlist, or through some form of parliamentary hearing. However, we consider that the risk of politicisation of the process from these options is far more acute.
Another option would be to consult the Lord Chancellor at the start of the process. There is nothing wrong with that, but we consider that this is not as effective as having the Lord Chancellor be a member of the panel and be able to put forward his views, listen to the views of others and engage with them in a meaningful way.
Baroness Butler-Sloss
I wonder whether the Minister could answer a point that he has not yet answered, which has been made by several people. There is a perception that if the Lord Chancellor is on the panel, the appointment will be politicised. For those who do not know the process but see that the Lord Chancellor has been one of those who has appointed the Lord Chief Justice, there will be a perception, certainly among lawyers and much more widely, that the Lord Chancellor has had a very large part to play in making that person the Lord Chief Justice and that it would be the sort of person who would suit him.
Lord McNally
I was about to come to the interventions of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Prashar. I do not think that my noble friend Lady Falkner got it wrong at all, despite her being bullied by the noble and learned Lord, Lord Falconer.
Lord Falconer of Thoroton
I apologise to the noble Baroness, Lady Falkner of Margravine, who I have never thought of as someone who it was possible to bully. However, if the noble Lord, Lord McNally, was under that impression, that just goes to show how wrong perceptions can develop.
Lord McNally
Turning to the other noble Baronesses, to get them going as well, there did seem to be a suggestion of, “Don’t worry, because the present system already has the nudges, nods and winks that will get”—
Baroness Prashar
I do not want to go into detail but, as the noble Lord knows, I had the privilege of being involved in some of these selection processes. When a selection panel is set up, there is a proper, transparent way of consulting at the appropriate time. There were no nudges and nods. In my initial submission, I said that I think that the present system works because, if there is a rejection or a reconsideration, it focuses the mind and is done in an open way. It is the inability of the people to be discreet that muddies the water. It is a most gossip-ridden world. In other worlds, when appointments are made, people respect confidentiality. However, the process was very open and transparent. Therefore, there is no question of nudges and nods.
Lord McNally
If it is such a gossip-ridden world, the better it would be to have the Lord Chancellor fully and transparently in the process. I am afraid that all that one can say is that strong opinions are held.
Baroness Jay of Paddington
I am a non-lawyer who, I am glad to say, was not part of the constitutional settlement in 2005. If the noble Lord described himself disingenuously as a simple lad, I am even worse as a simple laddess. I am trying to get a vision of this construct that the Minister has explained of either my noble and learned friend Lord Falconer or the present holder of the office of Lord Chancellor, the right honourable Kenneth Clarke, being subdued members of a totally egalitarian panel on which the merits of the candidates are discussed in a constructive and totally relaxed way, and the subdued and reticent Lord Chancellor finds himself in a minority. Should the panel recommend that Judge X becomes a member of the Supreme Court, the Lord Chancellor, having been this subdued and reticent member of the panel, could feel that it is wrong. What, then, are the prospects for effective working between them?
Lord McNally
Quite often in politics, in the law and in other parts of life, one finds oneself working with someone whom you do not particularly like. The difference this time is that there would be no political veto to that committee’s decision. It is worth putting on record that this would be a Lord Chancellor withdrawing his veto from those appointments. Yet, with his silken sophistry, the noble and learned Lord, Lord Falconer, implies that this is an extension of political power. It is just the opposite of the extension of political interference.
Lord Falconer of Thoroton
I was not implying it; I was saying it expressly, because that is plainly what is happening.
Lord McNally
It is simply not true, and anyone who is looking at this sees that it is a move away from a politician being able to exercise a veto to a politician transparently taking part in a process. If the Members of this Committee cannot see that, we will presumably withdraw it or take it back.
Lord Beecham
What, in the experience of the past seven years, has revealed defects in the present system?
Lord McNally
It has been the feeling that the retention of a veto in this matter was keeping in the political process.
Lord Falconer of Thoroton
So why is a veto being kept for every other member of the Supreme Court, every member of the Court of Appeal and every member of the High Court?
Lord McNally
I have explained before that this unique triumvirate is very important, and that that is why we have adopted a very distinctive way of making this selection. I am not sure how far I can take the Committee, except perhaps to read from the letter that I wrote to the noble Baroness, Lady Jay, which the noble and learned Lord, Lord Falconer, said he had not had the pleasure of sharing. In that letter I said: “At the present the Lord Chancellor decides at the end of the selection process whether to accept or reject the name put forward by the panel or to ask for the panel’s decision to be reconsidered. In practice, under these current arrangements it may be difficult to make use of the veto in these high-profile cases without risking perception of politicisation of the process. This difficulty was acknowledged by Lord Phillips and others in their evidence to your committee”—that is, the committee of the noble Baroness, Lady Jay. “The Government therefore considers that allowing the Lord Chancellor to sit on the panel will enable his accountability to be exercised in a more direct and effective way. You will, of course, be aware that the Lord Chancellor’s involvement as a member of the selection panel was supported in evidence to the Constitutional Committee by both the Lord Chief Justice and the president of the UK Supreme Court”. So I am not isolated in this view.
Lord Goodhart
My Lords, is it not more difficult for the Lord Chancellor to object to someone publicly rather than to discuss the appointment in a group of which he is a member? Does that not mean, therefore, that if the Minister tries to remove the person, he will do so only if there is very strong evidence to show that it is an unsatisfactory appointment, whereas if he is part of a group, the other members of the group might be more likely to go along with what the Minister says at that point?
Lord McNally
I have to say that if I was a member of a body charged with selecting a Lord Chief Justice or a president of the Supreme Court, no Lord Chancellor, however strong willed, would make me change my views unless his arguments were extremely persuasive; and I would expect the same respect for my views. We are not talking about a group of pussycats; we are talking about some very senior figures with great experience. I can see that those who have attended this Committee do not agree, but the simple fact is that we consider that our proposals strike the right balance in providing both the legitimate accountability for the executive in these roles and an independent and transparent process. They take away a political veto and put in its place a transparent involvement in a selection. I have set that out very clearly for the Committee.
Baroness Neuberger
I am sorry to ask the Minister this, but surely the presence of the Lord Chancellor on a committee of selection is a political statement in itself. It is worrying that the Minister should say that it removes a political presence. It just moves the position from what is a very public veto if, at the end of an independent process, the Lord Chancellor decides that he does not wish to go along with a recommendation to something that is less public but just as political. I find that really worrying, and I know that I am on record as saying that it is a constitutional disgrace.
Lord McNally
That is the noble Baroness’s opinion, but, again, she is suggesting words that I never used. I did not say a “political presence”. What I said was that, to me, the political veto was the intrusion into the process. It has been acknowledged by a number of contributors that if the Lord Chancellor is not in this narrow world where the decision and the selections are made, he will be the elephant in the room. This process gives the Lord Chancellor the chance to have an input in a selection but, as opposed to what the noble Baroness, Lady Neuberger, suggested, he will not have a veto. When the panel makes its decision, there will be no political veto. I should have thought that that would be welcomed by this Committee.
Lord Martin of Springburn
Perhaps I may ask the Minister about one point on which I would like clarification. It has been fascinating to listen to both sides of the argument. The Minister mentioned a lay chairman or chairwoman. From what walk of life would a lay chairman or chairwoman come?
Lord McNally
I shall have to take advice on that. I should have thought that he or she would come from the court of cardinals. I am not sure, but it would undoubtedly be a chairman or chairwoman of distinction and merit who had experience in these matters.
Lord Woolf
Might I suggest the former chairman of the commission, who is present here today.
Lord McNally
I saw her shifting slightly and thought she was going to volunteer to come back to the job.
Baroness Prashar
I thank the Minister for giving way. I now want to turn to another point on which I and the noble Baroness, Lady Jay, asked a question. The provision states that the Lord Chancellor “may” sit on the panel. If that is the case, on what basis will he decide to sit on the panel? If he decides to do so, will that not send a different signal? Will it not suggest that there is a reason why he wants to sit on the panel or a reason why he decides not to do so? I think that that will create an unhelpful perception.
Baroness Jay of Paddington
The noble Baroness, Lady Prashar, mentioned that I also raised a point on this matter. If the Lord Chancellor decides not to sit on one of these panels, does he not retain the right of veto, and that therefore the disappearance of the veto, on which the Minister has been relying so greatly, is not in fact universal?
Lord McNally
No. I am very grateful to the noble Baroness because I should have clarified this point. The Bill says that the Lord Chancellor “may” be a member, but we intend to bring forward regulations setting out that the Lord Chancellor “will” be a member of the panel. This will not be able to be changed other than by a new regulation, which will be subject to affirmative procedures and agreement and to the agreement of the Lord Chief Justice and the president of the Supreme Court.
Lord Falconer of Thoroton
I would be rather averse, as would this House, to the constitution being changed in this way by regulations.
Lord McNally
I take note of what the noble and learned Lord says. I am merely saying what the intention is. Clearly—
Lord Falconer of Thoroton
I say that it is a deceptive question for the reasons that underlay the question of my noble friend Lady Jay. We thought that sometimes you would and sometimes you would not, but apparently you are always going to be a member of the panel.
Baroness Butler-Sloss
I am sorry—this is only my second intervention but it is my last one. Something as important as this should not be put in a regulation. Why can there not be a government amendment on Report so that we know where the Government stand?
Lord McNally
I shall take that question back. In the mean time, the Government’s case has been set out. The trouble with the noble and learned Lord, Lord Falconer, is that he listens only to himself and is then convinced by all the arguments that he hears. I have listened to others in the Committee. We are in the debt of the noble Lord, Lord Pannick, for stimulating such a debate. However, if he wants to divide the Committee, I am reasonably confident that he will lose.
Lord McNally
Try me. I think that the issues that have been raised are such that it would be better to have another run at them on Report.
Lord Thomas of Gresford
My Lords, before the Committee sat I informed the noble Lord, Lord Pannick, that I was fairly relaxed and neutral about his amendment. However, the more I have listened to the argument, the more I have come down on the Government’s side. I recall the very unseemly row when the former Lord Chancellor’s veto was exercised in relation to an appointment, and I believe that I put down a Parliamentary Question. I think that he reversed his decision before I got the Answer, but I certainly tabled a Question about it. There was a furore at the Bar and I was approached by many people to do what I could to defend the reputation of a person who was considered to be the best judge in a particular division. It was extremely unseemly and the Lord Chancellor backed down. What did that say? He had given his veto and then he withdrew it and the appointment went ahead. All these matters should have been sorted out but not in such a public way as to damage the reputation of the person concerned and damage the reputation of the Lord Chancellor, if it needed to be damaged any further. It did not resolve the situation.
I have heard the debate and, as I understand it, the Lord Chancellor does have discussions behind the scenes with the Appointments Commission. That is what was said in terms by the noble Baroness, Lady Prashar. I do not think that that is right. I think we should have an open system. She said that it was open and transparent. It was not—I did not know about it, although I was sufficiently involved to put down a Parliamentary Question about the matter in issue.
Lord McNally
Lord McNally
My Lords, I can be relatively brief with this group of amendments as they are essentially technical in nature. Amendment 123 modifies amendments to paragraph 11 of Schedule 12 to the Constitutional Reform Act 2005, which concerns the appointment of the vice-chairman of the Judicial Appointments Commission. As drafted, paragraph 19 of Schedule 12 to the Bill amends the 2005 Act to provide that the Lord Chancellor may, with the agreement of the Lord Chief Justice, make regulations to provide for the appointment of the vice-chairman. On reflection, while we continue to believe that greater flexibility is needed for determining the composition of the Judicial Appointments Commission, provisions about the chairman and vice-chairman are matters which ought to appear in the Constitutional Reform Act 2005. This amendment restores the requirement that the vice-chairman must be a judicial member. As now, the vice-chairman will continue to be the most senior judicial member of the commission. Determining which judge is the most senior will be done by reference to regulations made by the Lord Chancellor with the agreement of the Lord Chief Justice.
Amendment 123 also retains the current restriction that the vice-chairman cannot deputise for the chairman in relation to his or her role on selection panels relating to appointments to the most senior judicial offices. This is because in these instances the role necessitates a lay rather than judicial member. Additionally, the vice-chairman will be unable to exercise the functions of chairman where the function is one specified in regulations to be made by the Lord Chancellor with the agreement of the Lord Chief Justice.
Amendment 124 amends paragraph 27 of Schedule 12 to the Bill so as to add to the list of judicial appointments below the High Court for which responsibility for making a decision on a selection by the Judicial Appointments Commission is to be transferred from the Lord Chancellor to the Lord Chief Justice. The appointments in question are those for a senior district judge or chief magistrate and a deputy senior district judge or chief magistrate. The other amendments in this group, namely Amendments 119, 122, 125 to 130 and 133, make minor and technical changes to the provisions in Schedule 12. I can provide further details of these amendments if needed. I beg to move.
Lord Falconer of Thoroton
My Lords, I strongly support the amendment for the reasons given by the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Jay, and the noble Lord, Lord Thomas of Gresford. It is an important amendment on a matter that is already causing difficulty. The loss of the noble and learned Lord, Lord Collins, from the Supreme Court was a direct result of the reduction in the retiring age. The Government now have an opportunity to do something about that, because this is a legislative opportunity.
Lord McNally
My Lords, this is probably the last Chamber on earth where Ministers should be defending a retirement age of 70. I have listened very carefully to what has been said. I understand and sympathise with some of the frustrations. The noble and learned Lord, Lord Falconer, just referred to the case where someone comes to senior judicial office for a very short term. I also acknowledge that, in many cases, those judges would be able to continue beyond the age of 70 in terms of their intellectual sharpness. In such cases, they can be a costly loss to the judiciary. I am not sure that I go as far as the noble Lord, Lord Gilbert, in advocating no retirement age at all—I have always been a strong supporter of a retirement age for this House. However, that goes into a different issue. I see that the noble Lord is about to come up for air.
Lord Gilbert
I am much obliged to the Minister for making reference to my remarks. All I can say is that I have listened to the debate with great care and I have not heard a single reason put forward for a retirement age for judges. Everyone says 70, 75, 80, 85—just picking figures out of the air. It is a nonsense. I am not a candidate for a position in the Supreme Court, but I see no reason at all why there should be any statutory limit for a candidate aged over 85 like me. Could we have a reason?
Lord McNally
As I said, this is hardly the audience for arguing or expecting support for retirement at 70. Indeed, sometimes when the noble and learned Lord, Lord Woolf, tells me about his itinerary for the following week, I realise that his idea of retirement is something quite different from that of most normal people. I am well aware that people can make a contribution.
The amendment is astute in singling out the Supreme Court, as it is in this court—which may be the pinnacle of a long career—where taking up office is more likely to occur when a judge is in his or her 60s. This can give rise to particularly unfortunate individual cases where a judge’s term of office may be rather shorter than we would have liked to see. I understand the arguments and the case that has been made. However, these individual cases need to be balanced against the bigger picture and the advantages of a uniform retirement age of 70 across the whole of the judiciary.
Mandatory retirement ages for judicial office-holders have played an important role in ensuring that the judiciary is, and is seen to be, independent. Quite rightly, once appointed to a salaried position, it is difficult to remove a judge from office before retirement. This, of course, is constitutionally correct and removes any risk of unwarranted interference from the Executive. While many judges may be able to continue to work, and to contribute as fully as ever, beyond the age of 70, that will not always be the case. Without the mandatory retirement age, if a judge beyond 70 insisted on continuing, there would be no way of removing him even where his colleagues considered that he was no longer quite as sharp as he used to be. Therefore, a standard retirement age, set at the right level, is needed. I do not think that anybody disagrees with that principle.
The Government consider that 70 is the right level. Indeed, this is at the higher end of international comparisons. It is also important in this context to consider the impact on public confidence in the justice system. The age of 70 strikes a balance between the desire of judges wishing to serve and the public interest in sustaining a judiciary that is fully effective in discharging its responsibilities. The amendment seeks to make a special case for the Supreme Court, so that the mandatory retirement age should be increased to 75. However, the reasoning for the age of 70 applies to judges of the Supreme Court as it does to other judges. People are people, whichever court they are sitting in. The age of 70 is, in our view, the right one—notwithstanding that it may seem premature in individual cases.
The retirement age also contributes to the need to bring in newer judges. Turnover in the senior judiciary is not significant as many judges remain in post until retirement. Given the statutory limit on the numbers of judges who can sit in senior courts, in particular the Supreme Court which is limited to just 12 judges, the opportunity to promote talented members of the judiciary from the lower courts is limited. Extending the retirement age to 75 in the Supreme Court would further limit movement from the Court of Appeal, which would, in turn, reduce opportunities for promotion to the Court of Appeal and have a trickle-down effect through the courts. This would also have the effect of delaying some of the positive impact on diversity, which that we would otherwise see through promotions from the lower courts.
Furthermore, it would be very difficult in practice to sustain a different retirement age just for the Supreme Court. Court of Appeal judges would be very likely also to make the case for extended retirement. A Court of Appeal judge who considers himself or herself a good candidate for appointment to the Supreme Court may find it difficult to accept that he or she had to retire at 70 if the Supreme Court were made up of judges who would automatically go on for another five years. If the age of retirement for the Court of Appeal were also extended, then why not the High Court and so on? If there is a clear business need, it is still possible for judges to continue to serve over the age of 70. Following retirement, members of the Supreme Court may go on to the supplementary panel. As a member of that panel, they might be asked to act as a judge of the Supreme Court. This enables the court to continue to make use of their experience and knowledge —but on a short-term basis.
I have listened to the contributions of the noble Lords and to the plea of my noble friend Lady Bottomley against ageism. Although the Government will keep this under review, we consider, for the reasons outlined, that the current mandatory retirement age of 70, together with the arrangements for sitting ad hoc after retirement, provide a careful balance between using experience, ensuring that the quality of the judiciary is maintained at all levels and ensuring the advancement of fresh talent. I also consider that differential retirement ages of different courts may be very difficult to sustain. We will keep this under review but, in the mean time, I ask the noble Lord, Lord Pannick, to withdraw his amendment.
Lord Pannick
My Lords, I am grateful to the Minister for saying that he will keep this matter under review. I hope that that means that it will be actively looked at before we return to the matter, as I am sure that we will, at Report. My answer to the question asked by the noble Lord, Lord Gilbert, about why we should have retirement age at all, is to point out the considerable difficulty of saying that someone is past it—particularly if they have tenure in the post. That is an extremely difficult task to perform in relation to individuals sitting on the Bench. That is why we have a mandatory retirement age. I have no difficulty with that. As I indicated, I am concerned that the retirement age of 70 is too high. However, I would say to the noble Lord, Lord Gilbert, that if he looks at the New York Times of 16 September 2010, he will see that Judge Wesley E Brown was sitting in the United States district court at the age of 103. The article describes how a tube under his nose feeds him oxygen during hearings. Sadly, Judge Brown has since died, but he did continue to an age much greater even than 75.
I do not accept the argument that the retirement age needs to be mandatory across the judiciary. I would hope that we could move to recognising the special position of the Supreme Court for all the reasons given by myself and other noble Lords. I certainly do not accept the argument that public confidence in the judiciary would somehow be undermined were judges to continue to the age of 75. I am not aware of any recent example of the public lacking confidence in our judges on the Appellate Committee—now in the Supreme Court—because they were between the ages of 70 and 75. It has already been indicated that some of the best and most valuable work of those senior judges, led by the late and much lamented Lord Bingham of Cornhill, was done between the ages of 70 and 75. That work would be lost.
Nor do I accept that there is any problem about new talent coming through because there are many vacancies for positions in the Supreme Court. However, the central point is that we are losing the best of our judges at too early an age. I hope that the Minister and the Lord Chancellor will reflect on this matter over the summer, but in the mean time, I beg leave to withdraw the amendment.
Lord McNally
My Lords, Amendment 121, in the name of the noble Lord, Lord Pannick, would extend the duty in Section 64 of the Constitutional Reform Act 2005. The duty requires the Judicial Appointments Commission to have regard to the need to encourage diversity in the range of persons available for selection for appointments. The amendment would extend this duty so that it applied also to the Lord Chancellor and the Lord Chief Justice.
Similarly, Amendment 121AA, tabled by the noble and learned Lord, Lord Falconer, introduces a new duty on the commission, the Lord Chief Justice and the Lord Chancellor, albeit in slightly different terms. Rather than a duty to encourage diversity in the range of persons available for appointment, the amendment sets out a duty to promote diversity in the judiciary. In addition, it sets out a requirement for an annual report on performance of the duty.
The Government have given a firm commitment to improve diversity within the judiciary. We consider that a diverse judiciary, reflecting modern society, will enhance confidence in the judicial system. However, we do not consider that the extension of the duty to promote diversity in Section 64 of the Constitutional Reform Act, or the new duty suggested by Amendment 121AA, would make any difference in practice.
I understood what the noble Baroness, Lady Prashar, meant when she said that these matters should not be turned into gesture politics. Since becoming a Minister, I have made it a personal commitment to attend every meeting of the judicial diversity task force in the hope that my presence will put a little speed into the process that we are trying to carry through.
The Lord Chancellor and the Lord Chief Justice, when exercising their public functions—other than those relating to judicial decision-making in the case of the Lord Chief Justice—are already subject to the public sector equality duty under the Equality Act 2010. This means that when either is exercising public functions in relation to the judiciary, the public sector equality duty applies.
I followed the intervention of the noble Lord, Lord Deben, and for a time thought that he was on my side in arguing that, where responsibilities already exist, it is not necessary to rewrite them. The duty of the Lord Chancellor and the Lord Chief Justice is set out in Section 149 of the Equality Act 2010 and provides that a person exercising functions of a public nature must have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Act; advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not; and foster good relations between persons who share a relevant protected characteristic and persons who do not.
It is true that the Equality Act duties are not in the same terms as the duty in Section 64 of the 2005 Act or the proposed new duty in Amendment 121AA. Parts of Section 149 of the 2010 Act refer to persons with protected characteristics. This does not have any bearing on what steps, for example, we should take to encourage more solicitors to apply for judicial office. However, it is also clear that this duty contains the key elements of advancing equality of opportunity that we are normally concerned with when discussing diversity; that is, issues of gender, race, disability and sexuality.
The duty of course applies to the Lord Chancellor not just in relation to judicial diversity but in any functions of a public nature that he exercises. We consider this general duty to be a better approach than attempting to multiply separate legislative duties on the Lord Chancellor in different areas. This debate has already given an indication of that with the various duties proposed by different amendments.
We are often told by this House that we overlegislate, but there is also a tendency to want to put every specific duty in every Bill. We endorse the Constitution Committee’s comments on the importance of leadership and understand the reasoning behind the amendments, but we believe that the existing duties in the Equality Act 2010 are sufficient to keep us up to the mark in this context. Extending the existing duties to include both the Lord Chancellor and Lord Chief Justice would add nothing of practical value in increasing the diversity of the judiciary. Nor would it add anything to a commitment clearly made and embedded in the Bill.
Lord Deben
If it is necessary to state these things in particular for some parts of the system and it is not thought to be otiose, why is it not necessary to do it at the top of the system and thought to be otiose in those circumstances? Either you leave it entirely and rely on the general demand or you apply it to both cases.
Lord McNally
I will ponder on that, but I also ask the Committee to ponder on the Pannick amendment. The noble Lord’s proposal to write specific responsibilities into the Bill makes a regular appearance when we are legislating—I think that it is the second time that he has done it anyway and that makes it regular. The argument is usually the same; it is a please-stop-beating-your-wife amendment. These duties are embedded in the Bill and in the roles of both the Lord Chancellor and the Lord Chief Justice.
Lord Falconer of Thoroton
The Minister is making some serious points. I am surprised by the proposition that the Equality Act would already require the Lord Chancellor or the Lord Chief Justice, for example, to promote among young people and black and minority-ethnic groups a greater willingness to apply to be lawyers, because that is partly what trying to increase the pool involves. Is the Minister really saying that that obligation, to get more people to apply at a much younger age to learn to be lawyers, is already covered by the Equality Act?
Lord McNally
The Equality Act invites the Lord Chancellor and the Lord Chief Justice to apply the principles of the Equality Act to the job that they are doing, which is the point that I thought that the noble Lord, Lord Deben, was making: that if one is doing a job that is covered by the Equality Act, one should be carrying out the responsibilities in which those duties are embedded. I think that is true.
Amendment 121A also relates to the duty in Section 64 and to Supreme Court appointments. It would ensure that the Section 64 duty to encourage diversity in the range of persons available for selection applied to those appointments. The amendment would also provide that Section 63 of the Constitutional Reform Act should apply to Supreme Court appointments. This would have the effect that those appointments would be solely on merit, that the person should not be selected unless he or she is of good character and that where two persons are of equal merit, one can be selected over the other for the purpose of increasing diversity.
Before turning to the detail of the amendment, I should first say that diversity is, of course, important at all levels of the judiciary, up to and including the Supreme Court. In fact, it is particularly important at the higher levels, as female judges or judges from an ethnic minority can act as powerful role models for those at a more junior level in the judiciary. Indeed, due to their higher public profile, they may also act as a role model for younger people considering a legal or judicial career and may be a powerful symbol to the public at large with regard to the perception of the judiciary reflecting our society. We are supporting diversity at this level in the measures that we are taking in the Bill to enable flexible working arrangements at the highest level, including the Supreme Court.
Turning now to the detail of the amendment, and starting with the application of Section 63, the objective here is to apply the tipping-point provision in these cases. Section 159 of the Equality Act 2010 contains a provision to allow a person to be preferred to another on the basis of a protected characteristic, such as gender or race, when they are equally qualified to be appointed. In relation to judicial appointments in England and Wales, our view is that it is not clear that the tipping-point provision in the Equality Act can apply, because Section 63(2) specifies that selection must be solely on merit. This use of “solely” may be seen as precluding the use of the Equality Act test. That is why the Bill brings forward the new tipping-point provision in Section 63(4) so that it can apply to judicial appointments, selection for which is within the remit of the Judicial Appointments Commission, notwithstanding the use of “solely”.
In relation to appointments to the UK Supreme Court, however, there is no provision that appointment must be “solely” on merit. Section 27(5) of the Constitutional Reform Act specifies that appointment must be on merit. However, other considerations apply, in particular Section 25(8), which specifies that in making a selection the selection panel must ensure that the candidate has knowledge and experience of practice in the law of each part of the United Kingdom. As there is no reference to “solely”, we consider that there is no bar to the Equality Act tipping point applying to Supreme Court appointments without the need for further legislative change.
In relation to the application of Section 64 to the UK Supreme Court, I have already set out the commitment to encouraging diversity in the Supreme Court, but for the reason that I have already outlined in relation to Amendment 74, I do not consider that a statutory duty would add anything to this. In addition, in this case any statutory duty would also need to reflect the UK nature of the Supreme Court, so the current amendment, by placing this duty on the Lord Chief Justice of England and Wales and the Judicial Appointments Commission, would not be appropriate.
I understand where the noble Lord, Lord Pannick, and other noble Lords are coming from. We have a summer to consider these things, but I also hope that noble Lords who have been involved in legislation will know that these declaratory commitments that overlay existing commitments are not always as helpful as has been suggested. I hope to assuage the concern of the noble Baroness, Lady Prashar, by saying that we will look at the case that has been made this evening. As I say, at the moment we are not minded to accept the amendments, but with the promise that this debate will be among my summer reading I invite the noble Lord, Lord Pannick, to withdraw his amendment.
Lord Pannick
My Lords, that is a very disappointing response. Promoting diversity is one of the greatest challenges facing the legal system and it is quite unacceptable that when a statutory duty to promote diversity is already imposed upon the Judicial Appointments Commission, that same duty should not be imposed, as the noble Lord, Lord Deben, puts it, on those who have leadership roles in the legal profession. I am not persuaded at all that there are other statutory duties under the Equality Act, which do not seem to me to cover the same ground. Indeed, if they did it is incomprehensible why there is a specific statutory duty on the JAC under Section 64.
Lord McNally
I hear the disappointment in the noble Lord’s voice. I would hate this debate to end with any idea that I personally, and the Government, am not committed absolutely to furthering diversity in the legal profession and the judiciary. I have said that I will take the debate away—I may even take it to the individual noble Lords concerned—and consider what we do when we come back.
Lord Pannick
I am grateful to the Minister. I was about to say that I do not doubt for a moment the Minister’s personal commitment to diversity. I have heard him speak about it on a number of occasions, and he feels as passionate about it as others. The question is whether the Government’s position can move. I hope, for all the reasons that have been expressed in this debate around the House, that the Lord Chancellor and the Minister will look at this again over the summer and that progress can be made. I have no doubt that if there is no progress, no movement from the Government, the House will return to the matter on Report, but for now I beg leave to withdraw the amendment.
Baroness Butler-Sloss
My Lords, I, too, support the amendment. There is an overlooked pool of potential future judges—or of what used to be called chairmen of tribunals, who are now judges. It is time that that group in government service of one form or another was seen as a potential. The point made by the noble Lord, Lord Pannick, about the numbers of both women and ethnic minorities is significant. I support the amendment.
Lord McNally
My Lords, I am very grateful for the amendment, because it allows me to clarify an important area: those who work in government legal services, the Crown Prosecution Service and other government legal offices. The intervention of the noble Lord, Lord Pannick, is extremely helpful, because it puts on record what a rich seam there is to be mined in those public appointments, and counterpoints the point that I have made several times from this Dispatch Box: that the public service has managed to make far more progress in promoting diversity over the past decades than has the private. We may learn lessons from that.
The Government are keen that members of the employed legal professions should take up judicial roles for which they are eligible, as like noble Lords, we are of the view that this could be a useful route to increasing diversity as well as ensuring that the Government can attract the best lawyers.
However, it has been the policy of successive Lord Chancellors that Crown Prosecution Service and other government lawyers when holding judicial office do not sit on cases involving their department. For CPS lawyers, this means that they cannot sit as recorders in the criminal courts, as the overwhelming majority of cases are prosecuted by the CPS.
Under the previous Administration, in 2003 the restrictions on applications by government lawyers were relaxed partially, and CPS lawyers became eligible for appointment as deputy district judges in magistrates’ courts. However, this was still on the basis that they did not sit on CPS-prosecuted cases, and therefore few roles are available.
The policy is based on the need to comply with Article 6 of the European Convention on Human Rights, which provides that litigants are entitled to be heard in front of an independent and impartial tribunal. Given those constraints, we need to think more creatively around the concept of a judicial career and how experience in one area can support subsequent appointment to judicial office in another area.
Opportunities are available for government lawyers to apply for judicial office. The published Judicial Appointments Commission programme for 2012-13 includes more than 300 vacancies for fee-paid office, which would be open to government lawyers to apply for. It is therefore important to communicate those opportunities available to government lawyers and to encourage them to take up judicial roles for which they are eligible—not least as this could be another useful route to increase diversity in the judiciary.
I am personally committed to playing a part in raising awareness of these opportunities. I recently met the Treasury Solicitor to discuss the best way to communicate them. I am also happy to consider any suggestions for changes to the current restrictions that apply to government lawyers to see whether we can go any further than the current practice—without, of course, infringing the rights to an independent and fair trial. When I met the Treasury Solicitor, I said that I was willing to write articles, go to seminars, or whatever, to raise the profile and awareness of those opportunities. As this is a probing amendment, I hope that the noble and learned Lord will believe that we are responding in this area and withdraw it.
Lord Falconer of Thoroton
I will certainly carefully consider what the Minister said. At the moment, he has given no reason why not to publish guidance that Parliament can consider. I invite him to consider whether guidance could be published regularly so that the issue is looked at with much more of a searchlight than at the moment. I will consider what the Minister said, in exchange for him agreeing—he is nodding—to consider what I said. I beg leave to withdraw the amendment.
Lord Falconer of Thoroton
My Lords, this is a short point about the Judicial Appointments Commission. Schedule 12 allows for equality between judicial members of the Judicial Appointments Commission and everyone else. I want to change that to make it clear that the judicial members will always be in the minority. As noble Lords will know, no one holds the judges in more admiration than me. One thing that is clear in the current process is that the judges’ views on appointing judges are very well expressed. Part of the reason for having the Judicial Appointments Commission was to bring in other people to the appointments process. I would like there to be judges on the Judicial Appointments Commission, but I would not want them to be, as it were, a blocking equality. I would be perfectly happy if they were in the most substantial minority. That is what I wish to reflect in the amendment.
Lord McNally
My Lords, if I could short-circuit debate on this, this is a very interesting proposal. I would like to take it away, consider it and bring it back on Report.
Lord McNally
Lord McNally
“Senior District Judge (Chief Magistrate) designated under section 23 of that Act
Deputy Senior District Judge (Chief Magistrate) designated under that section
(3A) In Table 1 of Part 1 omit the entries for the following former offices—
Senior District Judge (Chief Magistrate) designated under subsection (2) of section 10A of the Justices of the Peace Act 1997
Deputy Senior District Judge (Chief Magistrate) designated under that subsection”
Lord McNally
“(b) in paragraph (c) for “(3)(c)” substitute “(3)(d)”.”
Lord McNally
Lord McNally
Lord McNally
Crime and Courts Bill [HL]
Lord McNally Excerpts(12 years, 5 months ago)
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Lord Beecham
I shall speak to Amendments 68A, 68B and 68C and, notionally, give an indication on the stand part question on Clause 17.
I begin by repeating a declaration of interest: I am an unpaid consultant in the firm of solicitors of which I was a senior partner. I will be saying something about the Court of Protection, with which the firm and I have had dealings which partly inform some of what I will say this afternoon. In addition, I should perhaps, through an abundance of caution, declare that my daughter sits as a part-time deputy judge; but whereas I have occasionally briefed her when I was at the office, she has not briefed me in connection with today’s proceedings.
I shall go from the very particular to the general in discussing these amendments, and deal first with Amendment 68A, which seeks to remove the limits on the numbers of sittings that magistrates may make when sitting in the family court. The noble and learned Baroness, Lady Butler-Sloss, raised this matter at Second Reading and I share her opinion that it is undesirable to impose such a limit, given the necessity of building up expertise and providing continuity on the part of that part of the magistracy which deals with these very sensitive family issues. That is not a view universally shared, but it is my view and it will be interesting to hear the Government’s response and their justification, if they see that there is one, for maintaining the limit. I believe that the Norgrove report advocated its abandonment and it has logic on its side.
The remaining substantive matters are Amendments 68B and 68C. I should say immediately that the indication that I would move that Clause 17 not stand part of the Bill was a procedural device to allow a general debate which has been superseded by the amendments that I have now tabled. I will not move that Clause 17 not stand part of the Bill. We accept that it is desirable to move to the structure of single courts. The question is how they will be administered and what steps can be taken to ensure that the whole system of justice is adequately reviewed, kept under review and improved from time to time.
Amendment 68B seeks to require a report on the creation of the single court and how it works. As I say, we accept the concept in principle. We would like the Government to undertake a review after a relatively short time to see how it works in practice. There are concerns—some of which I will touch on when I come to the next amendment—around access, the venue and the like, particularly in the civil courts. Also there is a question about how the new family court will work. We are reasonably confident that it will work provided that it is adequately resourced but it would be sensible to review the situation before much time passes.
Having said that, my main concerns are reflected in Amendment 68C, which seeks an annual review by the Lord Chancellor of the workings of the whole Courts and Tribunal Service to take into account the experience that will accumulate over time, particularly the experience of practitioners and parties, but also to reflect other changes which are now in train. The civil justice system is undergoing massive change, not only as a result of the proposals in the Bill but also as a consequence of Lord Justice Jackson’s comprehensive if—as we have debated at some length on a previous Bill—controversial review which paved the way for a radically different approach to the provision of legal aid and advice, and the financing of litigation.
In pages 428-34 of his report, Lord Justice Jackson called for improvements in courts administration in the light of a pervasive feeling of dissatisfaction on the part of many litigants and their advisers, occasioned in part by a high turnover of staff and an excessive time spent on processing documents unlikely to involve judicial input. His report called for the establishment of regional centres which could attract long-term staff. It was felt that if you had a small number of centres instead of having them dispersed across the whole country you would be able to find and retain staff with the necessary expertise. There seems to be some force in that intention. However, Lord Justice Jackson stressed that it would,
“be wrong to compel everyone to issue proceedings at regional centres. Litigants who wish to issue claims in person at their local county court and to pay fees at the counter should be free to do so”.
In the event, the Government, for ever waving the banner of localism—I remind your Lordships that “waving” can be spelt in two different ways—have established a system in which all money claims have to be issued not just in regional centres but exclusively in Salford. Salford not only hosts the BBC and Manchester United, it also—
Lord Beecham
Not Manchester United. I withdraw that disgraceful slur on Salford or Manchester United—whichever way you want to look at it. All right, we have the BBC and the Lowry gallery in Salford and we now have the courts’ business centre there, too. Unfortunately, the establishment of that centre has led to a torrent of complaints about delays and loss of documents reported on several occasions; for example, in the Law Society Gazette on 12 February, 8 March and 12 May, when the headline was “Civil Court System Faces ‘Meltdown’”. On 24 May—as recently as that—it reported on a work to rule by staff intended to last until 31 July which is,
“evidence of a civil courts service reaching breaking point”.
The same story describes district judges being put up in hotels when on duty in Salford, because that is where they have to go, with a deputy district judge—not my daughter—complaining:
“New cuts are announced daily, and yet HMCTS is now squandering taxpayers’ money on hotels”.
Lord Ponsonby of Shulbrede
My Lords, I rise to support this group of amendments. Essentially, they are about monitoring the outcome of what has been the largest overhaul of the courts system for a long time. Many courts have closed and some have opened. Last Thursday, I went to the opening of the new Westminster Magistrates’ Court by the Lord Chancellor. It is a magnificent building and I hope that it will be a centrepiece of London justice for the next 100 years. While this is set for London, over the whole country—including London—there have been many closures of smaller courts, which mean we are moving away from the principle of local justice which is administered locally. The reasons for these sweeping changes should be monitored and that is the main purpose of this group of amendments.
I will now move to the idea of a single family court with a single point of entry. I understand that this change is generally welcomed by all those involved in the family court system. I will repeat a point that has been made before, that lay magistrates are looking for reassurance that they will continue to play an important part in the family proceedings courts. When I have raised this issue before, that reassurance has always been forthcoming from Ministers. I repeat that request today, although it will be in the details of the proceedings of the courts themselves—which I understand will be a separate Bill at a later stage—where the lay magistrates’ concerns will be most likely to get their reassurance.
Amendment 68A states:
“There shall be no restriction on the number of days that a family magistrate may sit in the family proceedings court”.
That is to meet the recommendation of the Norgrove report, as my noble friend Lord Beecham said. As the noble and learned Baroness, Lady Butler-Sloss, said, the main purpose is to increase flexibility and case continuity for repeat hearings. It is my understanding that it is for the Lord Chief Justice and Lord Chancellor to determine both the maximum and minimum amount of sittings by magistrates, and it is not a matter for primary legislation. I would argue that it is important that lay magistrates maintain their activities outside court and are not professionalised through excessive sitting. It is right that the route to appointment as a lay family magistrate is through the adult criminal lay Bench, as it is today. That should continue. I acknowledge that it is a conundrum to meet the needs which the noble and learned Baroness, Lady Butler-Sloss said, while at the same time maintaining a lay Bench which is genuinely lay.
There is an answer. These matters could be determined locally by bench chairmen and I understand that experienced family magistrates can choose to give up their adult criminal work, with the approval of their bench chairman. There are ways round these problems which can be administered locally. The purpose of this group of amendments is to look at the many changes and be reassured that the Government want to review them, write reports about them and keep an open mind about what they are introducing. I wholly support this aim.
Lord McNally
My Lords, I am very grateful for the opportunity to discuss these proposals. I should put on the record that Manchester United is in the borough of Trafford. It is very dangerous for people such as the noble Lord, Lord Beecham, to wander west of the Pennines with football knowledge: they are just not up to it.
Lord Beecham
The noble Lord will acknowledge, and I am pleased to say, that sometimes it is very dangerous for Manchester United to venture to the north-east.
Lord McNally
I agree. The noble Lord kindly gave me a plank on which to walk to firmer ground. His points about the operations of the Court of Protection are wider than the scope of this Bill and it would be better if I write to him and put a copy in the Library of the House. This has been mainly a debate about the fundamental overhaul of the civil and family court system in England and Wales, which has the aim of providing an effective, proportionate and efficient system for resolving disputes.
With these principles in mind, Clause 17, as has been said, establishes a new single county court and a single family court for England and Wales. In January 2008, the Judicial Executive Board commissioned the former Lord Justice of Appeal, Sir Henry Brooke, to conduct an inquiry into civil court unification, and the noble Lord, Lord Beecham, quoted from Sir Henry’s report. In that report, Sir Henry recommended that there should be consideration on the creation of a single national court.
Our proposals mean that a single court will provide a more efficient civil justice system where litigants can achieve a more efficient, proportionate and speedier resolution to their disputes. Access to justice will be increased as the single county court will enable Her Majesty’s Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in a cost-effective way. Court users in general will see a more responsive and consistent service through more effective use of information and communication technology, and the ability to centralise and standardise back office functions.
The noble Lord, Lord Beecham, mentioned the record of the business centre in Salford, which processes 1,800 claims every day. It does that within two to three days of their receipt. Some concerns have been raised but they are mainly as a result of bedding in a new service. The service is on a par with that previously experienced in the individual county courts.
Turning to the new family court, members of the public bringing family proceedings before the court rarely do so as a matter of choice. In many cases it is preferable for the parties and any children involved to be helped to resolve their differences outside the court arena. However, there are cases that are properly and appropriately brought to court for a judicial decision. The Government consider it is vital that individuals, many of whom are under stress when bringing family proceedings to court, are confronted with a system that is easier to use and access, and which provides swifter resolution of issues than is possible under the current court structure.
As your Lordships will be aware, the proposal to establish a single family court came from the independent review of the family justice system by a panel chaired by David Norgrove. A single family court will provide clarity and simplicity for the court user. It will increase accessibility to the court and reduce confusion. In particular, it will help those involved in family proceedings without representation who currently may be unsure whether their particular application should be made to a magistrates’ court or a county court and, if so, which category of county court.
The creation of a single family court will allow cases to be allocated appropriately by a judicial gatekeeper on the issue of proceedings, as all judges and magistrates hearing family matters will be judges of the family court. That flexibility will benefit the court user as the early identification of the appropriate level of judiciary will minimise delay. As with the new county court, the creation of the single family court will also lead to greater efficiencies in the use of administrative and judicial resources.
Lord McNally
My Lords, the proposal of the noble Lord, Lord Beecham, is very much in line with what we are trying to do but I cannot believe that it is necessary to have a statutory duty. We went through some of this in the LASPO Bill. I think that sometimes noble Lords do not accept just how much these days people get their information via the telephone and the internet, and from well-prepared, well-produced literature. There is a role for the voluntary sector and certainly we will be willing to explore with it the role it can play. However, surveys we have carried out show that only a small minority of attendees at court counters were there to seek information. Overwhelmingly, people get their information through well-produced literature, the telephone and the internet. Part of the thrust of the reforms we are carrying through at the MoJ is to make sure that our online services are as full as possible with information and guidance to steer people through the processes.
Yes, it is quite true that places such as the CABs can play an important part in being the first point of contact to help people to go online and make the right phone call. Certainly, as I said, we would be willing to talk to third sector advice agencies. Indeed, the MoJ and the court services already provide some grants to those organisations for that purpose. I recognise the importance of ensuring that information is widely available without requiring citizens to travel to their local hearing centre to find it. Her Majesty’s Courts and Tribunals Service already provides a wide variety of information to users and does so through a number of different channels, including websites, telephone and at court counters. In doing so, we already routinely work with third sector organisations. To keep pace with how citizens access information, and in keeping with other public services, we believe it is more appropriate to focus resources on providing information through online and telephone services so we can better serve the population as a whole to gain access to information from anywhere at any time. Equally, when people attend court, they will continue to have the information that they need to use our services effectively. With the assurance that county court users will continue, as now, to be provided with appropriate information, I hope that the noble Lord will be willing to withdraw his amendment.
Lord Beecham
It is certainly possible to underestimate the degree to which people access online services, but it is equally possible to overestimate the willingness and capacity of people to use such services or, for that matter, the adequacy of the services themselves. In endeavouring to prepare for today’s debate, for example, I went on to the MoJ website to track down documents referred to by the Minister, Mr Djanogly. I simply could not do that. It might well have been me, but it also might have been the MoJ. I cannot believe that it is universally the case that people, particularly people in sometimes difficult and distressing circumstances, which is why they are going to court in the first place, will necessarily be able to find information easily.
I know that the Minister is well intentioned in this, but it would be helpful if he could indicate whether, by the time we get to Report—after all, with the Summer Recess, it will be some months before we do that—he would endeavour to have these discussions with the third sector and indicate an outcome. At that point, it may not be necessary to press the matter further, but I would like something a little more concrete than good will before abandoning the proposal, for which I am very glad to have received the support of the noble and learned Lord, Lord Woolf.
Lord McNally
The noble Lord said that some in the voluntary sector had said to him that they had ideas. Short of committing money, I am very willing to talk to them about this issue, and we can look at it and report back at Report—perhaps not with an amendment from him. My good will is certainly there, but I believe that with understandable websites, the telephone and the use of the voluntary sector we can meet his concerns.
Lord Beecham
I am grateful for that assurance. I know that the Minister is sympathetic to the objective, if not necessarily the means. I hope that he can have some discussions with the sector and resolve matters, but I shall reserve my position until then. I beg leave to withdraw the amendment.
Lord McNally
Lord McNally
My Lords, wearing another hat, I am a member of the public business committee that guides public business through both Houses. That business committee usually takes the strongest possible exception to any government department in any Bill where a large number of government drafting amendments appear on the order paper. So I am a little bit embarrassed to be moving this amendment, although I am assured by those who advise me that the amendments are entirely necessarily.
The amendments cover a number of pages in the Marshalled List, but they are technical in nature. They include a number of minor or consequential amendments to take account of the creation of the single county court and single family court. With the creation of the single county court, the 170 existing county courts will cease to exist as separate courts or jurisdictions but will remain as hearing centres with court offices attached to them. Perhaps I can use this opportunity to answer a point made in an earlier debate. No, there is no secret hit list behind this legislation in creating the two single courts. But what is left are numerous statutory references to “a county court”, which now need throughout the legislation to be amended to “the county court.”
However, some provisions require more than merely substituting one word for another. In some cases, the relevant provisions extend to other jurisdictions, most notably Scotland and Northern Ireland. Accordingly, although still consequential, some amendments require further work to ensure that they have effect only in England and Wales. In other cases, when certain proceedings are required to be undertaken in a county court in a particular district, it has been necessary to amend those provisions to reflect the fact that there will now be only one county court with a general jurisdiction. In future and where necessary, specialist jurisdiction will be conferred on particular hearing centres by secondary legislation.
Amendments 71 and 72 clarify the rules designed to prevent any conflict of interest by part-time judges in the county court. The amendments provide that a part-time judge in the county court may not act as a judge in relation to any proceedings in the court in which he or she, or anyone with whom the judge is in practice, is directly or indirectly engaged as a legal representative. The amendments are needed in light of the expanding number of business entities within which solicitors may now work following the enactment of the Legal Services Act 2007. Amendments 80 to 82 introduce parallel provisions for the family court. As with the single county court, the amendments to the family court provisions are also largely minor and consequential. These amendments take account of the creation of a single family court from the existing three levels of court which currently deal with family proceedings in England and Wales.
As I am sure your Lordships will appreciate, the process of creating a new court necessitates a plethora of consequential amendments to various enactments. The majority of the amendments in this group are intended to ensure that the family court has the same jurisdiction as the courts that currently deal with family proceedings. This process involves, among other things, substituting numerous references across many different Acts to the “magistrates’ court” for the “family court”.
I should draw to the Committee’s attention one particular amendment relating to the family court. Amendment 83 removes the provision in new Section 31D of the Matrimonial and Family Proceedings Act 1984, which, by applying Part 1 of Schedule 1 to the Constitutional Reform Act 2005, gave the Lord Chancellor the power to require the Lord Chief Justice to make rules on the composition of the family court and the distribution of business among the judges within the family court. On further consideration, we have accepted that this power is unnecessary as the Lord Chief Justice will, regardless of this power, need to make rules to ensure the practical and efficient implementation of the single family court. As a result, we accept that there will be no need for any direction from the Lord Chancellor for him to do so.
There is also one final set of amendments in this group to which I should draw the Committee’s attention. Amendments 69, 70, 78, 79, 134, 136, 141, 142, 143, 144 and 146 all make consequential amendments to various enactments as a consequence of the renaming of chairmen of employment tribunals as employment judges. These amendments simply ensure that the relevant legislation reflect the new nomenclature. As I indicated in my opening remarks, I appreciate that there are quite a few pages of amendments in this group. But as I have tried to explain, they are overwhelmingly of a technical nature. I would, of course, be happy to explain particular amendments in further detail if necessary, but for now I would simply move Amendment 69.
Lord Beecham
My Lords, I am grateful to the Minister for giving us a quick guide through this jungle of amendments, about which I have nothing to say except that I note that the inflation of nomenclature is even greater than RPI: everybody now ends up as a judge, which I am sure is a great consolation to the legal profession. Clearly, these are technical and useful amendments and they should certainly stand.
Lord McNally
Lord McNally
Lord McNally
Lord McNally
I beg your Lordships’ pardon; I have lost my place. I apologise to the Committee for the delay in getting to my feet. I do not think that I have ever got so many amendments through at one go. I was overwhelmed by my success. However, I am slightly worried as the Chamber looks rather like a scene from the Alfred Hitchcock film “The Birds”, in which the birds start to appear rather menacingly. I am looking at the Cross Benches, where noble Lords are starting to come in and wait.
These amendments implement one of the recommendations of the Delegated Powers Committee’s report on the Bill. In line with that committee’s recommendation, the amendments provide that the first rules to be made specifying the functions of judges of the family court which can be performed by legal advisers or their assistants will be subject to the affirmative procedure. Any subsequent rules will, as the Bill currently provides, be subject to the negative procedure. I beg to move.
Lord Beecham
My Lords, I do not belong to the flock to which the noble Lord referred but I want to speak briefly to this amendment because I have some concerns about this matter, not so much as regards the procedure in terms of requiring resolutions but on the substance of the functions that are proposed to be conferred on legal advisers, as they appear to be very wide. Of course, justices clerks can take certain decisions now but it seems that that could be much extended under the provisions in Schedule 10, at page 124, which would allow the Lord Chancellor, with the agreement of the Lord Chief Justice, to,
“make provision enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser”.
It is a long time since I participated in a magistrates’ court, whether as regards the criminal law or a family court, but it is not clear to me what this is aimed at.
The concern has been expressed before in your Lordships’ House, and I have touched on it again today, about the potential to displace the lay magistracy with professionals. In that context I think of people who used to be called stipendiary magistrates but are now district judges. That is a displacement upwards in the qualification stakes, as it were, but this provision is not necessarily a measure of that kind. It would allow a legal adviser, a justices’ clerk or an assistant legal adviser to take decisions around family matters. I am not sure whether that is the intention but perhaps the Minister could indicate what sort of decisions are envisaged to be delegated to a legal adviser as opposed to a properly constituted family court judge or a bench of judges. I would be reluctant to see significant functions determined by the legal adviser to which this amendment refers. However, I may have got it wrong. I await the Minister’s enlightenment with interest, if there is such enlightenment.
Lord McNally
My Lords, I am happy to try to clarify the thinking behind this. The Delegated Powers Committee made this recommendation because it felt that the provision in the Bill represented an expansion of the existing power in Section 28 of the Courts Act 2003. Under this Act, functions of the magistrates’ court may be delegated in rules to justices’ clerks if a function is one which may be undertaken by a single justice.
As part of the creation of the family court, all judges, including magistrates, who deal with family proceedings will become judges of the family court. New Section 31O of the Matrimonial and Family Proceedings Act 1984 provides a power for the Lord Chancellor to make rules to enable functions of the family court, or of a judge of the court, to be carried out by a legal adviser. As is the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.
This new measure provides scope for justices’ clerks and assistant justices’ clerks acting as legal advisers and assistant legal advisers to the family court to carry out a wider range of the court’s functions than they currently perform. This is because the functions of the family court will be wider than those of the magistrates’ courts currently dealing with family proceedings, since the family court will have jurisdiction to deal with a wider range of family proceedings.
We are discussing with the judiciary how the new powers may be used. As I say, as in the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.
Lord Beecham
I am grateful to the Minister for that information as far as it goes but I am afraid that it does not help me to understand what kind of decisions might now fall to be made by a legal adviser or assistant legal adviser that are not currently being made. I appreciate that the Minister may not be able to give an answer to that at this point, but it would be very helpful to have that indication before Report. Presumably there is time for consultation. There must be some concept of what would be different under a new regime, if agreed by the courts. I understand, of course, the rules procedure and indeed the approval procedure that the amendment prescribes. However, I still do not understand the outcome, and I am aware that there is concern about it. My noble friend Lord Rosser has shown me a document from the London courts which expresses concern about this general issue of the movement of decision-making away from magistrates themselves, who will be judges of the family court.
It would be helpful to your Lordships’ House to understand exactly what difference is anticipated to emerge from these discussions and consultations in the actual operation of the courts—where decisions will be made, who will make them and what they would cover. Again, I repeat that I do not expect the Minister to deal with that tonight, but it would be helpful to have an assurance that we can have clarity about this when we get to Report.
Lord McNally
It is a very fair question and I will try to give the noble Lord a very full answer.
Lord McNally
Lord McNally
“16A (1) In section 15(2) and (3) (service of process: endorsement by, and declarations before, justices of the peace etc) for “justice of the peace” substitute “judge of the family court”.
(2) In Schedule 2 (forms)—
(a) in the form numbered 1 (endorsement of summons) for “justice of the peace” substitute “judge of the family court”, and(b) in the form numbered 2 (declaration as to service) for “Justice of the Peace” substitute “judge of the family court”.”
Lord Falconer of Thoroton
My Lords, my understanding is that we are debating the part-time provisions relating to the High Court, Court of Appeal and the Supreme Court. I understood that the noble and learned Lord, Lord Lloyd, said that it might be sensible then to deal with the other amendments in this group. I have in mind in particular the tie break provision amendment and my amendment about whether or not the Lord Chancellor should remain involved in appointing circuit judges. As I understand it, what was envisaged was that the noble Lord, Lord McNally, would reply on the part-time issues, then, without going on to another group, we would move on to the tie break and maybe the other amendment as well. Although the noble Baroness, Lady Brinton, has dealt with the tie break, at this stage I will restrict my remarks to the part-time issue, following the lead of the noble and learned Lord, Lord Lloyd. I would envisage that the noble and learned Lord, Lord Lloyd, would open the debate on the tie break as well.
Lord McNally
We had better get this straight from the start. The noble and learned Lord, Lord Lloyd, said that he wanted to move Amendment 120. He did not mention the amendment of the noble and learned Lord, Lord Falconer. I will take advice from the clerk, but if we are discussing only Amendment 115, whether Clause 18 should stand part of the Bill and, presumably, Amendment 116, then in normal circumstances we would go on to Amendment 117, not Amendment 120.
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 Falconer of Thoroton
I accept what the noble and learned Lord says and perhaps I may say that no one was more willing than he—his successor, the noble and learned Lord, Lord Judge, was the same—to accommodate people as much as possible. So in answer to the point of the noble Lord, Lord Thomas of Gresford, if it was difficult for individual High Court judges to go on circuit then the Lord Chief Justice, in my experience, was always reasonable and understood the difficulties. However, there were limits. The main one was that you would not agree to have as a High Court judge somebody who wanted to have half term and school holidays off. As the noble Baroness, Lady Falkner of Margravine, said, we are not talking about working Mondays and Wednesdays but about whether someone could work for a period but have the children’s school holidays off. There is currently a situation where a High Court judge gets three months off. Is it that much more different to say that school holidays could be taken off as well? That sort of flexibility would open the door to a group of people who currently would not feel able to accept appointment as a High Court judge.
The noble and learned Baroness, Lady Butler-Sloss, asked broadly why we do not do that at the lower judicial level. Absolutely not. Why should somebody who is 45 and has the quality to be a High Court judge be offered a part-time job only in a position that is essentially inferior to the one that they would otherwise merit? The noble and learned Baroness, Lady Butler-Sloss, then argued, and had some support from the noble and learned Lord, Lord Carswell, that it is very difficult if you have some part-timers to deal with cases that last for nine months. Again, with the greatest of respect to the noble and learned Baroness, who was equally a champion of diversity, there are a handful of those long cases. The idea that there would be resentment because a number of judges would be willing to do them and others would not is, in my experience, fanciful. With respect to the noble and learned Baroness, I reject that argument. I strongly support the Minister’s proposal in relation to part-time judges for the High Court Bench because it improves and increases merit. It opens and widens the pool. It has no effect whatever on merit. I am strongly in favour of it.
The noble and learned Lord, Lord Lloyd of Berwick, said it was okay for the circuit Bench but not for the High Court Bench. Again there is no logic and no ultimate justification for that position. We should, as a Committee, endorse the proposal because it indicates that we understand the pressures on successful professional people. We should not say that the High Court Bench—unlike being a consultant doctor, a successful barrister, solicitor, or architect—is the only place where we will not be willing to allow that sort of flexible working. I am sorry that she is not in her place but the noble Baroness, Lady Kennedy of The Shaws, was right when she said that it is about flexible working. Part time, as a piece of language, may be a slightly misleading suggestion. I strongly support the proposition for the High Court Bench.
The next tier is the Court of Appeal. I have indicated that the range of ages at which people are appointed to the Court of Appeal is between 45 and 60. Although there is no pattern, one could reasonably expect to go to the Court of Appeal after between six and 12 years at the High Court so we are talking about people in their early 50s, although there are some exceptions. I am quite sure that the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, were in the Court of Appeal in their late 30s, but normally early 50s is the sort of range, although there are some people who go later. Think about what your responsibilities were when you were in your early 50s in relation to looking after children. Again, I know of people in the current Court of Appeal who have adolescent children and some with children under 12. What is more, as the noble and learned Baroness and the noble and learned Lord will testify, some of them live outside London. So in addition to the problem of having caring responsibilities for children, they have to travel from far away, which puts increased pressure on them.
Should people have the option of saying that they would like to go to the Court of Appeal but would like to do it when there are school holidays or on some other part-time basis? It is said by the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Carswell, that this would cause great difficulty because there are long cases in the Court of Appeal. I completely agree with what the noble Lord, Lord Pannick, says. My experience with cases in the Court of Appeal is that they do not tend to last more than three days. I know from my own experience of a case that lasted two weeks in the Court of Appeal, but I imagine that that would be regarded as unusual. I cannot think of any other profession where it is said that two weeks cannot be accommodated for somebody who works flexible hours. So with the greatest of respect to the noble and learned Baroness and the noble and learned Lord, Lord Carswell, I would say that the idea that it will cause difficulties in the Court of Appeal is not right.
Finally, on the Supreme Court, the noble and learned Lord, Lord Lloyd of Berwick, started off by saying that there was no Supreme Court with part timers. First, there is the House of Lords, which has many part timers. The Lord Chancellor was a part timer as a Member of the House of Lords. It was also the norm for retired members to sit on the Judicial Committee the House of Lords, and indeed for retired members of the Supreme Court to sit in the Supreme Court. So the idea that the Supreme Court cannot deal with the arrangements of part timers is, with the greatest respect, wrong.
Secondly, in relation to the length of cases dealt with in the Supreme Court, my experience of cases in the House of Lords and in the Supreme Court is that they tend to be shorter even than cases in the Court of Appeal. There was one case that lasted over a week in the past few years, which was the Belmarsh appeal, but that was a very exceptional appeal. So in arrangement terms there would be no difficulty in having people in the Supreme Court who were part time.
The noble and learned Lord, Lord Lloyd, went on to another point. The proposal would make absolutely no difference, he said, because there is nobody whom he can envisage would be worthy of appointment who would want to be part time. First of all, we are talking about this being permissive, not compulsory. Secondly, how many people have caring responsibilities for elderly parents? I was describing earlier the fact that, when I sought to appoint one High Court judge, she told me that she could not take the appointment because she had responsibilities for her own elderly mother and the mother of her husband as well. How many people would want to be in the Supreme Court and would be capable of being there but have other responsibilities? I do not know—but I look around the world and I see part-time Supreme Court members, such as the noble and learned Lord, Lord Woolf of Barnes, in relation to the Court of Final Appeal in Hong Kong, or Sydney Kentridge in the Supreme Court of South Africa. Have those courts benefited from those part-time members? My answer is yes.
So if we were to agree to a provision that allowed part-time or flexible working members of the Supreme Court in the United Kingdom, there would be two benefits. First, it would increase the pool of people who would be able to apply. Secondly, it would lead to a sense that we thought that flexible working was available from the top to the bottom of our judicial system. I cannot think of a better message for us to send—and it would be one that was not just a gesture but would have an effect on increasing merit. So I and these Benches enthusiastically endorse the brave and sensible proposal that the Government have made in relation to part-time working in the Supreme Court, the Court of Appeal and the High Court.
Lord McNally
My Lords, I feel like sitting down. The noble and learned Lord, Lord Falconer, was quite right; when he was Lord Chancellor and put through his constitutional reforms the Liberal Democrat Benches gave him full and consistent support. The brain power behind that support was my noble friend Lord Goodhart. I was the political organiser. As the noble Lord, Lord McAvoy, will attest, the triumph of ideals must be organised, so I share the pleasure in these reforms. I also think it is right—we will have lots of discussion about this—that the reforms, good as they were and are, are capable of being tweaked and improved in the light of experience. Therefore, I am grateful to the noble and learned Lords, Lord Lloyd and Lord Falconer, for setting the parameters of the debate, as it were.
Before I go into the detail, I wish to deal with the general point raised by my noble friend Lord Goodhart. I understand where he is coming from and the need to acknowledge the importance of constitutional reform. However, as the noble and learned Lord, Lord Falconer, found from his own experience, the difficulty is getting parliamentary time to tackle this. You sometimes have to accept the necessity of putting very important issues into a broader based Bill. The Government are always faced with the dilemma—this is true of all Governments—of choosing whether to put provisions together in one Bill, as is the case here, or of delaying legislation on important and necessary reforms. We have chosen the former approach but the fact that these provisions are in Clause 18 and Schedule 12 does not for a moment diminish their importance. Wherever they sit in the Bill, I would expect your Lordships’ House to discharge its usual role in carefully scrutinising the Government’s legislative proposals. If there was any doubt about that, it should have been dismissed by the thorough way in which the House has filleted these proposals for two and a half hours this evening.
I turn to the merits of our reforms to the judicial appointments process and answer the concerns raised by the noble and learned Lord, Lord Lloyd. His amendments would delete from the Bill the key measures to promote diversity and flexible working in the Supreme Court. As the noble and learned Lord, Lord Falconer, said, “flexible” is the right word, not “part time”. Of course, we must ensure that the process through which our judges are appointed is fair, open and transparent. The longer I am in this job, the more I am in awe of the quality of our senior judiciary. They are a national asset and are respected throughout the world for their quality and independence, as the noble and learned Lord, Lord Falconer, said. However, this does not conflict with a requirement for greater diversity in the judiciary. Diversity in the judiciary is important to enhance public confidence in the justice system. The proportion of women and members of ethnic minorities is still too low, and this is particularly the case in the higher courts.
As the noble Lord, Lord Pannick, pointed out, progress in increasing diversity in the judiciary has been woeful and inadequate. We do not believe that we can rely on trickle-up. We consider that allowing flexible working in senior courts is an important reform to increase diversity, and that it will not detract from the principle of appointment on merit. I was recently asked by a very senior member of the judiciary, “Will our judiciary still be held in the same high esteem in 20 years’ time as it is today, if your reforms go through?”. I could look him in the eye and say “Yes, I believe that it will, but it will be a more diverse judiciary”.
The arguments made by the noble and learned Lords, Lord Lloyd and Lord Carswell, and by the noble and learned Baroness, Lady Butler-Sloss, is that flexible working in the Supreme Court is simply not practical, and that all judges of the Supreme Court need to shoulder their fair share of the business by sitting full-time. I simply do not accept these arguments. It is a judgment call, but we have no reason to believe that it cannot work to the benefit of flexibility and diversity. Regarding the virtuoso performance by the noble and learned Lord, Lord Falconer, I can see how he earned an honest crust at that game. However, the noble and learned Lord made a good point. Flexible working will not be compulsory but will provide flexibility and, as has been pointed out by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Pannick, the merit test would still be there. It is not a dilution but a move to greater flexibility, which we believe will allow for greater diversity.
Many of the arguments we have heard from the sponsors of this amendment reflect an outdated view of the family. As the noble Baroness, Lady Kennedy, explained so eloquently, we need flexible working not just to enable a woman in her 30s or 40s to balance her career with her caring responsibilities, but to enable women in their 60s to carry out caring responsibilities for teenage children. Equally, such caring responsibilities can extend to grandchildren, a disabled partner or elderly parents. As my noble friend Lady Falkner pointed out, we are not just talking about women but about ethnic minorities, and some of this flexibility will also apply to men who find the present system too rigid.
We need to allow men and women of all ages to meet such caring responsibilities and balance them with flexible working patterns. The noble Baroness, Lady Jay, and others noted that such arguments were put forward in the past to oppose the introduction of flexible working in other professions. It has been shown in the medical profession and elsewhere that flexible working arrangements can be readily accommodated. As I have said in this House previously, if anybody asks me what is the biggest difference I have seen, having worked in the Foreign Office and Downing Street in the 1970s and come back to Whitehall now in 2010 to 2012, I would say that it is in the diversity of senior advisers. If our Civil Service can achieve such diversity, why can the law not achieve it?
That is not to say that there will not be challenges in implementing this, and practical issues to work through in, for example, the listing of cases. However, we agree with the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, that these issues are not insurmountable. As he has indicated, most cases in the Supreme Court require hearings of only two or three days. As has been discussed, flexible working can take many forms, such as working during term times, or for nine or 10 months of the year, as the noble Baroness, Lady Neuberger, highlighted. Can I again pay tribute to her committee, which has not simply produced a report, but has kept on the case in terms of chivvying me and the Lord Chancellor in these areas? Moreover, if we are allowing flexible working in the lower courts, including the High Court and the Court of Appeal, the absence of flexible working in the Supreme Court could potentially deny an outstanding Court of Appeal judge the ability to consider applying for the Supreme Court.
I hope that the debate has, in a way, answered the concerns of my noble friend Lord Goodhart. These are important issues that are not to be taken lightly. I do not think that the House has taken them lightly but the case against the Government’s proposals has not been made—in fact, quite the contrary. The balance of the debate has been on our side.
Lord Woolf
Before the noble Lord sits down, perhaps I should mention the position of the noble and learned Lord, Lord Carswell. He did not want to absent himself from the later parts of the debate, but he had to return to Northern Ireland and has sent his apologies. I said that I would convey them to the House.
Lord Lloyd of Berwick
My Lords, I will be brief because I do not intend to divide the Committee. I am grateful to the Minister for his reply.
The noble Baroness, Lady Jay, was quite right to refer to the Lord Chief Justice’s evidence to her Constitution Committee. However, the point he was surely making was that there is already a great deal of flexibility in the High Court. That point was also made by the noble Baroness, Lady Falkner, during my speech. Indeed, it was made very recently by the noble and learned Lord, Lord Woolf. For example, if a judge is unable to go on circuit for family reasons or any other reason, he or she will of course stay in London and other arrangements will be made. That is already happening in the High Court. I say “he or she” because flexibility applies to both sexes; it applies to men as it applies to women. The thought seems to have been that somehow flexibility will help only women. That is not the case; it helps men also.
The noble Baroness, Lady Kennedy of The Shaws, also made a strong point on the importance of flexibility—as did the noble Baroness, Lady Neuberger. The truth is that we are all in favour of greater flexibility, just as we are all in favour of greater diversity. However, greater flexibility does not require the appointment of part-time judges. That is what this debate is not about. It is about whether part-time judges should be appointed not in order to give greater flexibility but to solve the never-ending problem of diversity—how to get more women into the higher courts. When the Minister said in his reply that flexibility and diversity for men and women were all one thing, he missed the whole point of this part of the Bill, which is intended to increase the number of women in the higher courts. All that I can say is that it will do no such thing.
Lord Falconer of Thoroton
I am grateful to the noble Baroness, Lady Prashar, for explaining that our experiences are the same. One can test this simply by looking around the Chamber. If one had to make a choice between the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, I think that everyone would agree that they bring totally different characteristics to a particular job. Would we be able to say that one is better than the other? No, in my view they are of equal merit. This is a serious point.
If we assume that the argument is right, the question is then: is it open to the person appointing a judge—because this does not apply just to the Supreme Court, but from the top of the judicial system to the bottom—to say, for example, “We have one woman and 25 men in this job and we have before us people of equal merit. It might be sensible to increase the group with one more woman”? Apart from the judiciary, I cannot think of any other organisation in the world that would consider that to be a bad approach. It also involves moving on from an artificial approach that people have to be graded as number one and number two. I support the approach taken in the Bill and I do not support the approach of the noble and learned Lord, Lord Lloyd.
Lord McNally
My Lords, again I am extremely grateful to the noble and learned Lord, Lord Falconer, for his contribution. I will not labour the point, but there is a difference of opinion. Most of the contributors to the debate do not believe that merit is something that can be pinpointed with laser-beam accuracy. That is not the real world, as both the noble Baroness, Lady Prashar, and the noble and learned Lord, Lord Falconer, have so vividly illustrated. I must also say that we must be very careful to ensure that collegiality does not morph into “chaps like us”.
Lord McNally
My Lords, we should first thank the noble Lord, Lord Deben, for what in the film industry is called a cameo performance. It was none the worse for that. I am under strict instruction from the Box not to say anything rude about the judges, so I can take pleasure at one remove.
This is an interesting little debate. At this time of night, I am sure that the noble and learned Lord, Lord Falconer, will not press his amendment. However, I will take this back to the Lord Chancellor. If a former Lord Chancellor gives the kind of powerful warning that the noble and learned Lord has given this evening and is supported by people of experience, the least I can do is say, “They don’t think this is such a good idea”.
I would, however, say two things. Working with the present Lord Chancellor, I am absolutely convinced of his belief in the separation of powers. He is convinced of it, as am I and as is the noble and learned Lord, Lord Falconer, and he is very careful to try to ensure it.
The other thing I know from direct experience is that the Lord Chancellor is extremely robust in defending the independence of the judiciary and has reminded colleagues at the highest levels of government about the limits of criticising the judiciary. On those counts, we can be secure. The Lord Chancellor also retains overall responsibilities to answer to Parliament, which should not be underestimated. As the noble Baroness, Lady Falkner, pointed out from the report of the Constitution Committee, the evidence was that there is no real input from the Lord Chancellor on this tranche of appointments. Jack Straw said that and, in the robust language of the present Lord Chancellor, appearance and reality diverged where names were going past him that he did not know and he was supposed to give approval for. It was a paper exercise that he felt uncomfortable with. He felt that it was more sensible to give this responsibility to the Lord Chief Justice. I take the point, again made by the noble Baroness, Lady Falkner, about whether there are resource implications. Knowing the Lord Chief Justice, I suspect that he will call that in aid.
What the Bill provides is that for many judicial offices below the High Court, the Lord Chancellor’s powers in relation to selection decisions and appointments are transferred to the Lord Chief Justice, for courts in England and Wales, and to the Senior President of Tribunals for appointments to the First-tier Tribunal and Upper Tribunal. Where the appointment is made by Her Majesty the Queen, the recommendation for appointment will still come from the Lord Chancellor, but he will merely transmit the decision taken by the Lord Chief Justice or the Senior President of Tribunals upon the selection of a person for office following a selection process carried out by the Judicial Appointments Commission. The Lord Chief Justice and Senior President will be constrained in the same way as the Lord Chancellor currently is, in that they will receive one name from the Judicial Appointments Commission and either have to accept the selection, reject it or ask the commission to reconsider its selection.
These amendments would undo that transfer of such responsibilities from the Lord Chancellor to the Lord Chief Justice and Senior President of Tribunals. While we consider that it is important for the Lord Chancellor to retain accountability and ownership of the judicial appointments process as a whole, and a direct role in appointments at a senior level, we do not consider that there is a need for the Executive to be involved in each individual appointment below the High Court. It is not practical for him to have knowledge of judicial officeholders at a more junior level and his role in the appointments process, at this level, becomes a rubber stamp. We therefore consider it appropriate that for many judicial offices below the level of the High Court, selection decisions and appointments are made by the senior judiciary, but that the Lord Chancellor retains accountability for the appointment system as a whole. This measure also received the support of the Constitution Committee in its report on judicial appointments. However, I will draw to the attention of the Lord Chancellor the fact that a former Lord Chancellor has spoken so strongly on the issue, and we will ponder what has been said in this debate tonight.
Lord Woolf
In taking that message to the Lord Chancellor, will the Minister also convey the message that, with great respect to the Lord Chief Justice, the Lord Chief Justice does not know all the people who will be appointed? He will know possibly a few more than the Lord Chancellor, but I suggest that just as the Lord Chancellor would have to rely on advice, so would the Lord Chief Justice.
Lord McNally
Certainly, I will make sure that the Lord Chancellor reads today’s Hansard. The point is that it is advice that comes from the process of the Judicial Appointments Commission. Just as the noble and learned Lord, Lord Falconer, wants the Executive still involved, I am not so convinced and, even more importantly, nor is the Lord Chancellor. As I have said, we both take a view about the separation of powers of which this could and should be a useful symbol: the Lord Chancellor of the day would not be holding on to a rubber-stamping exercise, he would be leaving it with the Lord Chief Justice of the day. This has been an interesting mini-debate, which I will raise with the Lord Chancellor for further consideration.
Lord Falconer of Thoroton
I am grateful to the Minister for saying that he will raise this matter. Perhaps I may say that the Minister’s arguments were much better before he moved on to his written notes, which were of poor quality. On the point made by the noble and learned Lord, Lord Woolf, as regards the Lord Chief Justice knowing the candidates to be Admiralty Registrar better than the Lord Chancellor, I agree that that is an unlikely assertion. The implication of what the Minister said was that, unlike the circuit Bench, the deputy registrars and the Masters, the Lord Chancellor would be aware of all the candidates who would be going up for High Court appointments.
Speaking for myself, when I came from the Bar to being the Lord Chancellor, I was not aware of all the candidates. I would imagine that as regards the current Lord Chancellor—who I greatly admire and I believe utterly, with no doubts at all, to be a defender of the independence of the judiciary—90% of the people, if not more, who are being considered for the High Court Bench are equally unknown to him in relation to the circuit Bench. The judicial appointments system is not supposed to be on the basis that the Lord Chancellor knows the people and therefore has some input, but on the basis of him looking at the way in which the system works.
I found the friendly Minister saying, “I will give this a thought”, more attractive than the unsatisfactory nature of what was said in defence of the argument. Let me give the Minister two pauses for thought. First, if as Lord Chancellor you had not appointed one woman circuit judge for a year, you might want to ask about that in a way that the Lord Chief Justice would not be in a position to do. Secondly, let us suppose that the Judicial Appointments Commission said that in relation to circuit judge and recorder appointments it is going to award those appointments only to those people who have a 2:1 from Oxford or Cambridge. The Lord Chancellor can do something about that in the way in which the Lord Chief Justice cannot because the Lord Chancellor has a role in judicial appointments. Those two points are in aid of and additional to the point made by the noble and learned Lord, Lord Woolf, which I had not made but which is just as important; namely, that when there is a question mark about what a circuit judge has done, which there is very frequently, there needs to be someone in Parliament who has had some responsibility for appointing that judge and can say that the appointment was made in a sensible way. The idea of shuffling that off to the Lord Chief Justice is a mistake which will weaken the judiciary in our constitutional arrangements, without in any way improving the separation of powers. I hope that we will think about this issue again.
Lord McNally
I think that that is called extra time. So as to make it clear, I and I alone take responsibility for anything that I say from this Box. Just to give the noble and learned Lord, Lord Falconer, some idea of how deep the Lord Chancellor and the Lord Chief Justice go, having sat in on a number of meetings, I now have a full knowledge of the working of the Midlands Circuit 1970. I will take those points back.
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.
EU: Personal Data
Lord McNally Excerpts(12 years, 6 months ago)
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Lord McNally
That this House takes note of European Union Document No 5833/12 and Addenda 1 and 2, relating to a draft directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data; and takes note of the Government’s recommendation not to exercise their right to opt out of this draft directive under Protocol 19 of the Treaty on the Functioning of the European Union (The Schengen Protocol).
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the noble Lord, Lord Pearson of Rannoch, who I am glad to see in his place, has put down an amendment that will, I suspect, structure our debate. The noble Lord’s amendment is in two parts. First, he did not want us to exercise our right to opt in to this regulation and secondly, he regrets that this House had no opportunity to debate that decision before the deadline on it of 14 May.
Perhaps I may deal with that last point first. I wrote to the noble Lord, Lord Boswell, the new chairman of this House’s European Union Committee, on that matter. I wrote:
“I apologise to the Committee that the Government did not draw the Committee’s attention to the opt-out sooner. The issue of whether the Directive should be considered as triggering the possibility of a Schengen opt-out or not is a complicated one and I do recognise that the Government reached its conclusion on this matter later than was ideal … I would like to reassure the Committee that lessons have been learned by the Ministry of Justice in relation to the important issue of informing the Parliamentary Scrutiny Committees of opt-in or opt-out decisions and I thank you for your patience and understanding on this occasion”.
To that, the noble Lord, Lord Boswell, replied with his usual kindness and courtesy:
“We are grateful for your letter and will look forward to considering the Directive further in the debate which is scheduled to take place in the House on 20 June 2012. We will continue to hold this proposal under scrutiny and will look forward to receiving updates on the progress made in negotiations in due course”.
I hope that that apology to the committee, and now to the House, will be sufficient to deal with the quite legitimate complaint of the noble Lord, Lord Pearson, on this matter. As I said, it was partly because of the timing of Prorogation and the difficulty of deciding the technical issues, but we have learnt lessons and I sincerely hope that it will not happen again.
The debate also gives an opportunity to debate the proposed data protection directive, which the European Commission published on 25 January. That directive will cover the handling of personal data by public authorities for police and criminal justice purposes. It is therefore an important instrument that affects security as well as freedom and it is right that the House is given the opportunity to consider the proposals.
Negotiations on this instrument are at an early stage, so this debate is timely as there is still much to be discussed in the Council of the European Union and in the European Parliament during the months and possibly years ahead. I understand that the European Commission is looking to conclude negotiations on this directive during the Irish presidency of the Council of the European Union in the first half of 2013. However, it remains to be seen how realistic that timescale is. That puts into context the fact that we missed this one issue. It is not that the House will not have time and opportunity to return to these measures during the next months, and perhaps even years.
In the case of the proposed data protection directive, it is the view of the Government that this directive can be classified as a Schengen-building measure and therefore, under Protocol 19 of the Treaty on the Functioning of the European Union, the UK had the option of opting out of the directive. The deadline for notifying the Council of the European Union of that decision to use the opt-out was, as I said, 14 May. On this occasion, the Government decided that we would not exercise the opt-out. The decision followed a full debate in another place held on 24 April 2012.
I should say that we had also wanted to hold a debate in this House ahead of the decision on whether to opt out, but were regrettably unable to find time, partly because of Prorogation, and partly because of delays in deciding whether to accept that the directive was Schengen-building. However, the critical issue for discussion is our position on the detail and how we go about engaging with our European partners in ensuring that the directive works in the British national interest. On this, there remains ample opportunity for this House to influence the Government’s strategy.
Let me begin, however, by setting out the background to the directive, and the Government’s approach in considering it. Currently there are two pieces of European legislation governing data protection: first, a 1995 directive that relates to the use of data by businesses, public bodies and other organisations; secondly, what is known as the 2008 framework decision on data protection, which governs use of data by police and criminal justice bodies. The Commission is bringing forward a package of measures that replace the directive with a regulation, and the framework decision with a directive.
The Government’s approach on the regulation is a matter for another day—although broadly speaking we recognise a case for updating the law, but have concerns on the detail. On the directive, we have approached it on the basis of a clear position: that the continued ability to share information on crime and justice matters across borders is of fundamental importance. In an increasingly globalised world, crime does not stop at the port or the airport but happens across jurisdictions or involves people of many different nationalities.
The Government support proportionate, clear and coherent data protection rules that keep personal data safe and protect the rights of citizens. We also support the free transfer of data across borders and between organisations where it is necessary to prevent crime, increase security and help to keep our citizens safe. We believe that appropriate data protection rules and security go hand in hand and are not mutually exclusive. Our first priority in considering the directive has been to protect arrangements that allow information to be shared within the EU for the benefit of the public and the protection of their safety and freedom.
The challenge with this measure is that, although parts of it are welcome and will help in the fight against crime, some of its provisions are excessively bureaucratic and unwieldy. As our impact assessment shows, as currently drafted we have concerns about the costs it would impose on UK law enforcement agencies—for example, a requirement to appoint compulsory data protection officers and a bureaucratic requirement on keeping documents and records.
There is also a point of principle at stake. We are very concerned that, despite the fact that Europe’s focus should properly be on cross-border sharing of data, the directive has been drafted so as to apply to domestic processing of data. That is, unlamented, it would affect rules on information being shared by police forces within the borders of one country. We think that that is impractical and a matter best left to national governments.
Our approach in thinking about our position on the directive has been to work out what is the best way of securing the benefits of continued data-sharing while minimising the costs of a measure that, in some respects, goes further than we are comfortable with. Our judgment has been that, despite our concerns about the current text, the best approach is engagement to ensure that it works for Britain.
There are a few reasons for that. First, the directive is the opening position in what will be a lengthy and ongoing process of negotiation. The UK is far from the only member state to have concerns about the text. We believe we can secure a much better deal by working with our partners rather than by trying to isolate ourselves. Secondly, the legal base of this measure gives the UK an effective exemption on the issue that we have been most concerned about: domestic processing of data.
The directive is based on Article 16 of the Treaty on the Functioning of the European Union, the new data protection provision included in that treaty by the Lisbon treaty. Under Article 6a of the UK and Ireland’s protocol applying to justice and home affairs—Protocol 21—the UK has what we believe to be firm protection ensuring that the provisions of the proposed directive on internal processing will not apply to us.
Despite the fact that we have that exemption, the Government are none the less keen to try to defend the point of principle and ensure that the directive does not apply to domestic processing for any of the member states, as we consider that there is no justification for extending EU regulation to this area. We will be supporting other member states in pressing this in negotiations.
Before 14 May, it was of course open to us to exercise the opt-out on the directive and I had better say a word about why we decided not to do so. Our judgment was that opting out would be a very bad idea because it would endanger our continued ability to share information across borders without necessarily freeing us from the bureaucratic and unwelcome obligations potentially created by the new directive. The reason for that was that even if we did opt out, other member states would have continued to be bound by the terms of the new directive, which would have been negotiated in our absence. The status of existing rules governing the sharing of data would have been thrown into disarray, with a high probability that the UK would have had to negotiate new bilateral arrangements with each of the member states.
Other member states would not have wanted to share data with a country that they consider might not protect it to the same extent as the regime they operated. Rather, they would have pressed the UK to adopt similar requirements to the directive so that they would be able to operate within the same regime. All told then, opting out would not have stopped us being subject to the obligations of the directive. More likely, it would have meant being bound, albeit indirectly, by a measure that we would not have participated in negotiating and shaping. Furthermore, an opt-out would have reduced our ability to negotiate essential data-sharing agreements, such as the passenger name records directive and the EU-third country agreements, and thrown into doubt other, broad Schengen measures. This would be a serious problem for our law enforcement agencies, which benefit from the sharing of criminal data under Schengen.
All told, we have judged that the national interest is best served by participating in this directive so that we are party to the framework governing data-sharing for policing and criminal justice across the EU. The priority now is to build trust across member states for the necessary sharing of data to protect our citizens and make the strongest case possible for this to be done within a framework of appropriate and proportionate rules. Let me be clear about what is at stake here. Rules enabling the sharing of data have made a tangible difference to the United Kingdom and to take steps that imperil those agreements would put us all at risk.
We want to see a system that allows police and criminal authorities to continue to protect and serve the public effectively, and which also allows individuals to be confident that their privacy, safety and freedom will be safeguarded. The Government believe that these two objectives are not contradictory but can be achieved in tandem by creating a data protection framework founded on the principles of necessity and proportionality. We would, naturally, already expect robust data protection governance as a matter of course in public authorities. However, we would question the necessity of having the European Union telling us how to create, organise and run these arrangements. The more prescriptive and burdensome aspects of the directive are opposed by the Government and we will seek to remove or mitigate them during the negotiations in the Council of the European Union.
I repeat: this is the beginning of a lengthy process of negotiating. The UK will seek to influence negotiations in order to bring about outcomes that are more in line with our policy objective, which is to end up with an effective but proportionate framework. We expect that other member states will share the same outlook. We believe that an opt-out decision was a possibility for the Government but would have been the wrong choice. It is not possible to have data-sharing without data protection. We want to be part of a European data protection framework that protects both security and freedoms and we believe that the limited application of the directive means that we should be content to be part of it. While there are areas of the proposal that the Government will seek to alter so that they provide an appropriate level of flexibility for law enforcement bodies, we are clear that UK participation in this data protection directive is in the UK’s best national interests. I beg to move.
Lord McNally
My Lords, the concluding remarks of the noble Lord, Lord Beecham, brought to mind a saying much loved by my old mentor, the late Lord Callaghan—that a lie was half way round the world before truth could put its boots on. These days, it is more than a lie that can get half way round the world before the police can put their bicycle clips on. We have to approach these issues with the benefits of modern technology but balance that with some of the threats that modern technology brings to individual privacy and such matters. It is that which we have been debating.
I am grateful to the noble Lord, Lord Beecham, for his support from the opposition Front Bench. We will keep committees informed on the matter. I am not quite sure whether the Justice Select Committee has asked for a formal meeting, but I will write. A large number of questions were asked. If I miss any out in my reply, I will make sure that I cover them in a written response to noble Lords who have taken part in the debate. As the noble Lord, Lord Beecham, reminded us, these are important issues in terms of individual rights as well as in terms of security, crime detection and related matters.
The noble Lord, Lord Hannay, implied that I had taken matters lightly in our application of, or approach to, the Ashton-Lidington promises. That is not true. I take them very seriously indeed, and that is why I have been forthcoming in my apology. I know the noble Lord, Lord Pearson, well enough—indeed, I have a certain affection for him—but if you offer him an olive branch on matters European, he is most likely to grab it and hit you over the head with it. Nevertheless, the apologies were sincerely given. Accidents happen. It is cock-up, not conspiracy. As I said in my opening remarks, we are trying to learn the lessons and, as the noble Lord, Lord Hannay, said, this is one of the first times that we have discussed Schengen under these proposals. If there are lessons to be learnt, we will learn them.
To get things into proportion, we are in June 2012. The Lisbon treaty specifically gave us until June 2014 to make up our minds on these issues. Therefore, to imply that we do not have every answer to every matter two years before that deadline suggests that we have a liking for conspiracy that simply is not there. At Question Time today, my noble friend Lord Henley gave absolutely crystal-clear assurances on how the Government will approach this. The idea that somehow we were going surreptitiously to slip through, one by one, the 133 measures covered in this area of the Lisbon treaty is laughable. Of course the world has not come to a dead stop and things come through. When measures are brought forward, as they necessarily will be, what happens—although it did not happen perfectly in this case—is that we bring them to Parliament, which has the opportunity to debate and approve them. The fact that this House did not get that opportunity in this case is regretted, but the other place, as my noble friend Lord Lester pointed out, approved the measure by 267 votes to 24.
I would say only one other thing about the points raised by the noble Lord, Lord Pearson. I will come to his questions, but he read out a list of, I think, six measures that had gone through. I would be happy if he read them out again because, as an ordinary citizen, I am much reassured that we have that measure of European co-operation on those kinds of issues, although I know that we come from a different philosophical point on this. However, if the noble Lord is trying to convince the British people of his point of view, I am glad that he reminds them of the really positive measures concerning co-operation on criminal justice matters, as I think that that strengthens my approach rather than his.
I thank the noble Lords, Lord Hannay and Lord Lester, for their contributions. Concerning the point made by the noble Lord, Lord Hannay, about taking the opportunity for a coherent approach in these negotiations, I can give him an absolute assurance that we will look to his committee and other committees in both Houses. We will provide them with updates and look to them for comments and commentary on the progress of these negotiations. There will be no attempt by the Government to do anything other than that.
As I said, I shall not be able to cover all the issues that have been raised in the House today. However, the 133 measures—a nice, frighteningly large number—need analysis. I welcome the fact that there will be an opportunity for the committee to look at them. Some of them are dead or dying. It is not the case that the Beelzebub that the noble Lord, Lord Pearson, spends his nights afeared of is thinking up 133 new measures. This is a matter of taking stock in a calm, rational manner and then, one hopes, having a rational discussion based on analysis about what is in our national interest and allowing Parliament to take a decision following such a debate. There is certainly no attempt to pre-empt matters. The Government continue to approach each opt-in decision on a case-by-case basis, taking decisions based on the UK’s national interests. They will not be making any premature decisions on this, as my noble friend Lord Henley assured the House earlier today.
I am told that the reference to competent authorities is from Article 3 of the proposed directive. A competent authority is any public authority which is competent for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties. Therefore, a competent authority is not some branch of the Commission; we are referring here to the police.
Our impact assessment was also mentioned. It is true that we considered that there were both bureaucratic and cost implications, but we also said that being positioned outside the directive could involve costs too. Again, as we look at these matters and as the negotiations unfold, these things can be fully examined.
Oh dear! It looks as though we may have another apology to make in that the noble Lord, Lord Pearson, said that the Motion before the House is a recommendation and not a decision. This was not an attempt to mislead the House. Of course, by now it has become a decision and I am sorry for that drafting error.
I was asked why the title of the directive mentions free movement of data. The purpose of the directive is twofold: ensuring that personal data are protected and ensuring that they can be exchanged for the purposes of the prevention, investigation, detection or prosecution of criminal offences. I think that that covers the question asked by the noble Lord, Lord Wills, about why we had this twin-track approach. From the beginning, there has been legislation covering the broad area of data exchange and the very specific needs of the police and criminal detection authorities.
The noble Lord, Lord Wills, cunningly and quite outside the remit of this debate, asked me about Section 55. I am very willing to write to him. We have continued to be reluctant to put penal sanctions on Section 55, but we keep it under review and we continue to discuss the matter with the Information Commissioner.
I will shuffle through my notes and look at them very carefully because I think it will be easier to answer some of the specific questions in writing. I will write to noble Lords with a considered response to the specific questions and put copies in the Library of the House so that these matters are on the record.
I hope that the noble Lord, Lord Pearson, will agree to withdraw his amendment. This debate has been useful. Basically, he seems to argue from a very fundamentalist position, which I understand but do not agree with, about whether or not we should participate in these kinds of processes. Speaking for the Government, I take the position, as I stated at the beginning, that some of the things that the data protection issues cover are, by their very nature, matters that need international co-operation. We have been very frank in saying that we think that the approach of the Commission has been overprescriptive. There are burdens and costs that we do not like, but we are convinced that it is in Britain’s interest to opt in, to negotiate hard, to keep Parliament fully informed and to make decisions at the appropriate level and at the appropriate time on these matters.
Tonight’s debate has been chastening for my department but I give the assurance: “Please, Sir, we won’t do it again”. However, we will continue to engage positively on these matters because, in our view, that approach is in our national interest. I sincerely hope that the noble Lord will agree to withdraw his Motion so that the House can approve my Motion.
Lord Pearson of Rannoch
Before the noble Lord sits down and before I respond on my Motion, perhaps I could press him on two questions, as I did not quite understand his answers. First, is he saying that we are likely to have a number of individual opt-ins for debate and vote before the end of May 2014? I think he implied that that could well happen. Secondly, the most important question I put to him to which I would like an answer is this: as these opt-ins clearly amount to a transfer of sovereignty, or whatever you want to call it, from this Parliament and our courts to the Commission and to the Luxembourg Court of Justice, why are we not having a referendum? I understood that that was the point of the referendum Bill. If the Minister would be good enough to answer those two questions, I will reply briefly to my Motion.
Lord McNally
Gladly so. I said that—and I do not know because I am not a clairvoyant on these matters—we will try to get notice from the Commission to see if things are coming down the track. As I said, things are not frozen, so we may well get another one like this. I do not know. But if we do, perhaps with better handling, we will do what we have done with this which is to bring it before both Houses for approval.
On the question of a referendum on these measures, this was clearly laid out in Lisbon. The process was clearly laid out. The Government have made their approach one of full consultation with the relevant committees of both Houses and the opportunity for both Houses of Parliament to take a decision. I do not think that the Government could have been any clearer tonight. That is the Government’s position.
I am told that the noble Lord’s Motion is not an amendment. It is a freestanding Motion. The House must decide on my Motion and then separately on that of the noble Lord, Lord Pearson. I am grateful to the Clerk for that guidance. I hope that that is a clear enough explanation of the noble Lord’s two questions. I beg to move.
Crime: Victims
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, we are still consulting on this matter and hope to report the outcome of the consultation as soon as possible.
Lord Laming
My Lords, I am grateful to the Minister for that reply. However, although many of us support the general thrust of the consultation document, especially the point that local services should be shaped to meet the needs of the communities they serve, does the Minister agree that these local services would be more efficient and more effective if they were supported by a strong organisation at the centre that could provide them with advice, help and support? In particular, will Victim Support continue to maintain its services for witnesses and the relatives of victims of homicide?
Lord McNally
Part of the purpose of the consultation is to work out where it is best to keep responsibilities centrally—the noble Lord referred to one such responsibility in the case of homicide—and where they could be devolved locally. I assure him that the Government fully appreciate that Victim Support provides a valuable service. We would be surprised if it did not continue to have an important role, as we have proposed moving to a mixed model of national and local commissioning.
Lord Dholakia
My Lords, I recently chaired a commission from the Magistrates’ Association on the future of summary justice. One of the outcomes of this consultation was the view that victims of crime felt that the system of justice was opaque and seldom provided them with information about the process and the outcome. In light of the consultation process which the Minister has undertaken will he undertake to establish a pilot scheme to see how the local commissioning of victim support schemes might operate and whether it would not be a better option than the current system?
Lord McNally
I am not sure that I can assure my noble friend that we will move to pilot schemes. The plan, after the consultation, is to see which parts of Victim Support should go to local commissioning and which parts should be retained centrally. My noble friend makes the point that many victims complain that they are not kept well enough informed. The Ministry of Justice information site is trying to give a much better ability to follow through on crimes. However, we feel that the current code is very process-oriented and out of date. In the victims and witnesses consultation we are proposing to review and rewrite the code to clarify what victims should expect. I will certainly take on board what my noble friend says about the opinions of the Magistrates’ Association, which I value very highly.
Baroness Howarth of Breckland
My Lords, does the Minister agree that this point is particularly true of children and young people who appear in court as witnesses when they are the victim of crime? Will he look into whether progress is being made on the work done previously? Although that work moved the position forward a long way it seems to have stalled, and children are still being revictimised in court.
Lord McNally
I will most certainly follow it up. It is very important that children who are caught up in court processes, whether as the accused or as the witness of a crime, are dealt with in a non-damaging way. I am certain that the thrust of policy development seeks to do just that.
Baroness Royall of Blaisdon
Can the Minister assure me that, whatever follows at the end of the consultation, the needs of victims of stalking will be properly taken into account? I met three victims of stalking earlier this week and it was absolutely clear that their needs as victims were never taken into account. I hope that this situation can be improved.
Lord McNally
Again, I certainly take that on board. We are beginning to appreciate more fully just how traumatic it is for an individual to be stalked. I am hopeful that we will be able to treat this as the serious crime that it is, not only in dealing with the perpetrators but in how we support the victims.
Lord Elystan-Morgan
May I invite the Minister to consider a very significant omission in the otherwise excellent consultation document? Is he aware that under Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 a court is obliged in appropriate cases to grant compensation to the victim of the crime, and that if it does not take that view, it is obliged to certify why that is not being done? Is he satisfied that the fullest use is made of this most significant statutory provision?
Lord McNally
As often with questions from the noble Lord, I am not sure that I am aware of the provision to which he referred. If I understood him correctly, he is saying that courts should sometimes use their discretion not to grant compensation. I think that there have been press reports of compensation paid to people who have been involved in criminal activity—
Lord Elystan-Morgan
I am sorry; perhaps I may explain. I was referring to a situation in which a court feels that a fine is appropriate, all other things being equal, but that the defendant can hardly afford to pay a fine and compensation. The court might decide that, in the circumstances, the public interest is better served by using a compensation order.
Lord McNally
I think that I had better take advice and write to the noble Lord. I can feel the thin ice under me so I will write to him.
The Lord Bishop of Liverpool
My Lords, I know that the Minister recognises that victims often feel overlooked in the criminal justice system. Can he please tell the House whether victims themselves have begun to ask for the decentralisation of this service?
Lord McNally
Yes. A large number of organisations are involved in victim support, and Victim Support—as the title says—is one of the leading ones. At the moment it is in effect a monopoly provider of services, receiving some £38 million of public funds. In this consultation exercise we are looking at whether it would be better to commission some of those victim support activities locally, and then we can decide where the dividing line between local and central delivery should be. It is a perfectly legitimate exercise. We have, as I say, completed the consultation, and our response and specific proposals are imminent. I hope that that will inform further debate in this House and elsewhere.
Lord Campbell-Savours
My Lords, do not some of the awards available under the criminal injuries compensation scheme tend to inflate the incidence of false allegations? Would it not be wiser to invest less money in compensation and more in victim support?
Lord McNally
That is exactly what we are doing. We intend to put more into victim support and to focus compensation much more effectively.
Baroness Scotland of Asthal
My Lords, in this new construct that the noble Lord is putting forward, how can we be assured of the quality of the support that is given to victims if it is disaggregated in the way that the Government are contemplating?
Lord McNally
Quality will come partly from local accountability and the fact that support will be devolved to the new police commissioners, who will have responsibility for victims. That is a very healthy development. I do not want the new police and crime commissioners to see their role as second-guessing chief constables. They should have a wider role in their responsibility for police and crime. If victims are high on their list of priorities, the democratic process will ensure service and accountability.
Justice: Sentencing of Young Offenders
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Lord Sheldon
To ask Her Majesty’s Government what action they are taking to avoid the unnecessary sentencing of young offenders.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are introducing reforms to give professionals greater flexibility to resolve offences without the need for prosecution, if this is in the public interest. However, robust community sentences, and where necessary custodial sentences, will continue to be used for the most serious and prolific young offenders.
Lord Sheldon
My Lords, I thank the noble Lord for that reply, because it is rather useful. However, there is one problem in avoiding any unnecessary sentencing of young offenders: the age of criminal responsibility, which is 10 years in England but 15 years in Nordic countries, so there is a big difference there. There has also been a United Kingdom-wide financial programme to help young people to fulfil their potential. Will this programme be used to help the young offenders?
Lord McNally
My Lords, first, on the question of the age of criminal responsibility, the argument that has been put forward by successive Governments is that keeping it at 10 allows the support services to intervene early and positively with young offenders who have committed serious offences. I think the Scots have already moved or are about to move to 12, and, as the noble Lord rightly said, other parts of Europe have higher ages. All I can say is that at the moment, as with our predecessors, Her Majesty’s Government have no plans to review that minimum age—for that reason of intervention.
On the question of help for young offenders, again, following on from the progress made by our predecessors, we are trying early intervention to help to identify the problems behind some of the offences, and that will certainly continue.
Lord Dholakia
My Lords, does my noble friend agree that there has been a significant reduction in youth crime that is mainly attributable to the work of the Youth Justice Board, which deals with offenders up to the age of 18? Will he consider extending the remit of the Youth Justice Board to deal with young adult offenders up to the age of 21 to see whether this pattern can be repeated?
Lord McNally
Like the age of criminal responsibility, this matter is kept under review. There are certainly indications that more holistic intervention by youth offending teams has led to a significant fall-off in youth offending, and there are lessons to be learnt from that. As always with these matters, the question is how much further up the age group one can carry interventions such as that without severe resource implications. However, my noble friend is right to draw attention to the 18 to 25 group, where a lot of criminality that lasts for a lifetime starts becoming embedded.
The Lord Bishop of Chester
My Lords, I speak with experience of the restorative justice programme at Thorn Cross young offender prison in my diocese, which has demonstrably effective results. Where in government policy will the support be for creative and effective restorative justice programmes that help young offenders to come to see the consequences of their actions?
Lord McNally
My Lords, the Government hope to publish in the near future a White Paper on the criminal justice system. Having seen some early drafts, I know that we will bring forward some positive proposals on restorative justice, because, as has been said, there is every indication that restorative justice has a significant and beneficial impact on reoffending.
The Earl of Listowel
My Lords, I welcome what the Government are doing. However, given that half of children in the juvenile estate have experience of being looked after by their local authority and a quarter of adults have similar experience, and given the particular worry about young people leaving the care of their local authority and moving into bed-and-breakfast accommodation, will the Minister discuss with his colleagues the possibility of a review of services for looked-after children, including children in children’s homes, and care leavers? Will he also discuss with colleagues the example of the Scottish Institute for Residential Child Care, which provides a centre of excellence in a university to train staff in children’s homes, to research looked-after children’s services and to influence policy, which we do not have in this country?
Lord McNally
My Lords, as so often, the noble Earl puts forward some very sensible suggestions, which I will follow up. Anyone who has been involved with our criminal justice system must be slightly shamed by the fact that a large number of young people who find their way into it as adults have been in our care as children.
Baroness Royall of Blaisdon
My Lords, the Minister rightly spoke warmly of the work of the Youth Justice Board in answer to the question from his noble friend. Does he recognise now that it was wrong for the Government to propose the abolition of the Youth Justice Board in the Public Bodies Bill and to have fought so tenaciously for it?
Lord McNally
As always, the Government listen extremely carefully to this House. In this case, the House was wise, and the Government were wise to listen to it.
Lord Roberts of Llandudno
My Lords, do those who have offended and have been penalised in one way or another have greater difficulty in finding jobs when their sentence ends? We know that 23% of young people between 16 and 25 are out of work. How much more difficult is it for those who have offended?
Lord McNally
I would have thought that it would be difficult. If you get a criminal record, it becomes a problem in employment. That is why part of the thrust of the Government’s policy on young people offending is to try to keep them out of the criminal justice system and to give those with responsibility in this area greater flexibility in their treatment. As my noble friend has said, it is also a question of making sure that young people are kept in the education system. Where full-time education is not the most appropriate route, apprenticeships and other forms of training should be there.
Baroness Sherlock
My Lords, is the Minister aware that about a half of those convicted for riot-related offences, certainly at the time the Riots Communities and Victims Panel published its report, were 18 to 24 year-olds? If he does not feel that he can give additional resources at the moment to enable the Youth Justice Board to take over, how else can he address the problems of that age group? After all, if we have another set of riots, that may be money well spent.
Lord McNally
What I can say is that there is a White Paper in the offing on these areas. It does not take a great deal of homework to identify that age group as perhaps the next best group on which to focus the intensity of care that has been shown in the youth justice system. If we could get anywhere near that success in the 18 to 25 group, we would have a real chance of cutting reoffending, which is the real problem in our prison population and in general levels of crime.
Trusts (Capital and Income) Bill [HL]
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Criminal Justice and Police Act 2001 (Amendment) Order 2012
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Trusts (Capital and Income) Bill [HL]
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