Crime and Courts Bill [HL]

Lord Woolf Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Woolf]

My Lords, it has been a great privilege for someone such as myself to be able to hear the previous speeches on the Bill. Some of the material that has to be considered is quite complex and not necessarily the stuff to excite one on a hot summer's afternoon if one is sitting in the garden faced with the attraction of a slumber. Previous speakers have shown a masterly understanding of the Bill and so I am not sure how much I can help the House. However, I would like to give the House some general reactions in consequence of my reading of the Bill, informed by the speeches that have gone beforehand, which have been of such a high quality.

I share in the general welcome for the Bill which I have detected. You address the parts of the Bill that cause you concern; you do not address those parts with which you are happy. The areas that have been focused on for that reason have been few but, none the less, are very important. Although I would not dream of following my noble and learned friend Lady Butler-Sloss in respect of family courts, I would indicate that I wholly agree with what she said about them. Perhaps what she said about family courts is, in generality, true also in relation to county courts. Courts work best if those in the courts have the fewest restrictions on their ability to handle cases in a way which is constructive and sensible. When you break courts down into too many parts you have to create divisions which do not help the administration of justice. A single court, like the family court, enables resources, which are so scarce today, to be devoted in the best way possible for the resolution of those very difficult issues that come before the family court.

I do not think that there is any need for concern about the status of High Court judges because, if the court is working properly, the judges will be chosen with care so that the cases that they deal with reflect their expertise, experience and ability. Cases are administered in a way that will enable the diet of a High Court judge to be distinct from that of judges in lower courts. What I have just said I think is particularly true in an ordinary civil case. Of course, we shall have to examine the detail but people really want their civil disputes resolved as economically, effectively and efficiently as possible. As I see it, at their heart, the proposals are trying to move forward in the right direction in that respect.

The areas to which I would want to make particular reference are those that deal with the changes to the appointment process, particularly in relation to the position of the Lord Chancellor. At the end of my judicial career in this country I had what I thought was probably the most important responsibility I had at any stage of my judicial career: trying to agree with the noble and learned Lord, Lord Falconer, a concordat which, when examined by the Select Committee, resulted in the Constitutional Reform Act 2005. As I understood it, the result of that process was to achieve a new relationship between the judiciary, the Executive and Parliament which would be in the interests of all concerned in the new situation that had arisen. Deeply involved in that process was the belief that we had now come to the stage when this country should follow most other countries that adopt proper democratic standards in recognising the need for the separation of powers. The change in the Lord Chancellor’s status—I would like to express my high regard for what successive Lord Chancellors achieved by way of appointment—meant that the role played by the Lord Chancellor would no longer be appropriate in the new situation that we were dealing with. In that situation it was decided that the Lord Chancellor's powers should be carefully curtailed and structured so that he could act as an important element in the appointment process but no longer have any role in making appointments. He was to have the ability to accept proposals of the new independent Judicial Appointments Commission, but he was to have no power himself to make proposals or to start off an individual’s appointment unless it had gone through the process prescribed by Parliament, and which brought the matter before the commission.

Here I would like to echo as forcefully as I can the very wise words of the noble Baroness, Lady Prashar, who has unique experience in running an appointments commission and successfully managed to confront very significant administrative difficulties in getting that process off the ground. I must disclose an interest here. I was one of the members of the appointments commission that appointed her. She herself was appointed by an independent process, as was each member of the commission. It was felt that the independence of the judiciary was critical and required that the best people available should be appointed. The process of appointment, although not known or properly understood by the public at large, should be one that in itself indicates independence. That is what we have achieved, and we have done it in a way much admired all around the globe by other jurisdictions which would like to have a process of a similar nature.

I say those initial words because the idea of giving the Lord Chancellor the ability to invite himself, so to speak, to be a member of the Judicial Appointments Commission—I am not quite clear from my reading whether it is the Lord Chancellor, the President of the Supreme Court or the Lord Chief Justice who can do this, but I may have overlooked something because others have said that it also applies to the Lord Chief Justice—is an inroad on the principle of the independent appointments process which the 2005 Act created. I submit that the Lord Chancellor would be right to get himself into a position where he is not performing the role which it is generally clear he is intended to perform, particularly in the case of the most senior judges. It seems strange that he should seek power with regard to those people. Under the current legislation, there is a power which requires him to be consulted. I just do not think it is realistic to assume that if he is consulted, he cannot exercise as much influence as he could if he were a minority member of the Judicial Appointments Commission. If the commission is not going to follow what he has indicated when consulted, why would it follow him if he is on the commission? I do not see that that is an advantage.

When one looks at the other powers that are going to be given to the Lord Chancellor by regulation—each one deserves careful examination—they seem to be inconsistent with his being a member of the Judicial Appointments Commission. He would be giving guidance to himself. That does not seem a very sensible arrangement. It is proposed that his powers be extended in various ways, and I suggest that his being given an increased role just does not match. I therefore suggest that the report on appointments that we received from the Constitution Committee of this House was absolutely right when it turned its face against the change in the position of the Lord Chancellor in this regard.

I hope that in summing up the Minister will be able to give us some assistance by telling us what he sees as the advantages of this. I emphasise “what he sees”, because I suspect that some of this comes from very senior members of the judiciary. If that is the case I am bound to say that I disagree with those views. I think we should keep to and not derogate from the general position indicated in the 2005 Act. Lord Chancellors come and go, and although it is a great and high office, one cannot assume that in the future there will not be a Lord Chancellor who, for reasons he or she thinks proper, will do things that really do not benefit the system. Giving a regulatory power in the terms proposed here seems to me to be extremely dangerous. I have indicated that I agree with the Constitution Committee’s report and I have indicated that I agree with the noble Baroness, Lady Prashar. Perhaps I should leave that subject now.

That leaves the other Part of the Bill. I am particularly interested in Clause 23, which deals with disposal in the community. Again, it is not more than a regulating power. I understand from what the Minister said in opening that in due course we are going to have the benefit of understanding what is in mind here. I am certainly not going to overlook the opportunity to persuade the Government to take the sort of actions which the noble Baroness, Lady Linklater, was encouraging them to do by expressing too much concern about the way the matter has been dealt with as part of the legislative process. Surely there must be caution in having a Bill where there are so many powers which by themselves cannot be understood or assessed because the Government themselves have not yet decided what to use them for. All they have done in the Bill is to enable the Government to put the flesh on the bones at a later stage. However, if we are going to discuss the matter appropriately, as we have done today, it is not very helpful not to know anything about the flesh.

I do not want to detract from my appreciation of the Bill by picking faults here, there and everywhere. That is much better left to Committee. I extend a general welcome to the Bill but I suggest that we must approach parts of it with caution. I share some of the concerns expressed about the introduction of cameras in courts. It could be beneficial but we should approach it with caution. It will be absolutely essential that the judge in court should be able to decide whether filming should be allowed after satisfying himself that it would be in the interests of justice that this should happen. I recognise that that will put a great burden on the trial judge.

My final point concerns diversity. The judiciary—and, to my knowledge, previous Lord Chancellors who had the power of appointment—strove to make our judiciary better reflect the society in which we operate. It is an extremely difficult exercise and should not be underestimated. However, giving a message—which is what the Bill does—that the legislature and those who are responsible for appointments consider it a good idea to have a test that is more favourable to accelerating diversity is certainly sensible. However, I am bound to say that I would have started not at the top but lower down. If there is another Supreme Court that allows its judges to work part-time, I know not of it. Again, perhaps the Minister will enlighten me when he replies. The work of a final court of appeal cannot easily be done three days a week, or with the sharing of labour. Many cases last all week—and if they do not, the judges start working on their judgments when the case finishes. If one judge cannot come and take part in that way, from a practical point of view I do not see how they will be able to make the sort of contribution that we want our diverse judges to make to the administering of justice. That is another matter that we should consider.