Crime and Courts Bill [HL]

Baroness Jay of Paddington Excerpts

Tuesday 4th December 2012 Lords Chamber

[Lord Pannick]

My Lords, I support the amendments in the name of the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee, but I want to speak to Amendment 86D, which arises out of the report of your Lordships’ Constitution Committee. The amendment is in my name and those of the noble Baroness, Lady Jay of Paddington, chairman of the Constitution Committee, the noble Baroness, Lady Prashar, former chairman of the Judicial Appointments Commission, and the noble Lord, Lord Powell of Bayswater, who is also a member of the Constitution Committee. I am very pleased to see the noble Baronesses, Lady Jay and Lady Prashar, in their places. The noble Lord, Lord Powell, apologises to the House that he is unable to be present as he has to be abroad today.

As your Lordships have heard, Section 64 of the Constitutional Reform Act imposes a duty on the Judicial Appointments Commission to have regard to the need to encourage diversity in the range of persons available for selection for appointments. The purpose of Amendment 86D is to ensure that this statutory duty to promote diversity is also placed on others who have leadership roles in relation to the judiciary: that is, the Lord Chancellor and the Lord Chief Justice. As the noble Lord, Lord Marks, has said, the promotion of diversity is one of the greatest challenges facing our legal system. Figures produced by Professor Alan Paterson, a very distinguished expert in the field of judicial studies, show that of the OECD countries, the representation of women in our Supreme Court—one member out of 12—puts us shamefully in the last place in that measure of diversity.

The aim of achieving a more diverse judiciary does not mean reducing the standards for appointment. On the contrary, merit remains the criterion. The task, as Section 64 recognises, is to identify ways of bringing to the fore those highly skilled women and members of ethnic minorities who are in the legal profession—there are very many of them—so that they can be considered for appointment on merit. The amendment would impose a statutory duty on the Lord Chief Justice and the Lord Chancellor in this regard.

The Government have previously argued that a specific statutory duty is not needed because everybody understands the need to move forward on this. There are three answers to that approach. First, Section 64 does contain a specific statutory duty on the Judicial Appointments Commission. It is right and proper to make clear that responsibility does not lie solely with the JAC but also with others in a leadership role. The noble Lord, Lord Deben, who I am pleased to see in his place today, made a very powerful speech on that point in Committee.

Secondly, a statutory provision such as this importantly emphasises to the public the recognition by all those in a leadership role that this is a subject to which priority must be given. Thirdly, and finally, the amendment, and the enactment of a statutory duty along these lines, is no criticism whatever of the efforts made by the current Lord Chief Justice—I know personally that he takes the need to promote diversity very seriously indeed—or of the new Lord Chancellor, or, indeed, his predecessors. They all take these matters very seriously, as I know does the Minister, who is personally committed to promoting diversity in the judiciary. However, they will not always be in post and it is important to take this opportunity to address the matter in legislation.

Amendments 86A to 86C, to which the noble Lord, Lord Marks, has spoken, also have my support, although he acknowledged that Amendment 86C may be less preferable to Amendment 86D. Amendment 86DA in the name of the noble Lord, Lord Beecham, which is also in this group, is to similar effect. Again, it has my support, although, if I may say so, it is optimistic indeed for proposed new subsection (4) of the amendment of the noble Lord, Lord Beecham, to suggest that the problem of a lack of diversity may be cured in five years. I remind the noble Lord that in a recent lecture, Lord Sumption of the Supreme Court suggested that 50 years was more realistic on current progress.

[Baroness Jay of Paddington]

My Lords, I rise briefly, but powerfully, I hope, to support the noble Lord, Lord Pannick, in his amendment and to say that I agree with much of what the noble Lord, Lord Marks, said. As has been said, this point was very much the burden of the Constitution Committee’s report on judicial appointments, which I had the privilege of chairing. Above all, our message was that there needed to be decisive and persistent leadership on this question among those making appointments at every level.

I agree with the noble Lord, Lord Pannick, and regretfully disagree with my noble friend Lord Beecham about the prospects for a timescale of five years to make this happen because one of the things which was absolutely clear in the evidence that we took from a number of people who had held office over a long period was that many of them had a personal commitment to improving diversity, as the noble Lord, Lord Pannick, has reinforced, but that none had actually succeeded in doing that. It seemed unlikely that that was to do with their capabilities but was much more a case of there being resistance within the system. Therefore, the obligation on the Judicial Appointments Commission to have a statutory duty to enforce and support diversity seemed to be one that should properly be extended to the wider group of people in leadership positions, as the noble Lords, Lord Pannick and Lord Marks, said.

The response from the Government to our report was surprising in the sense that it referred almost exclusively to the fact that the one thing the Government did not want to do was to overburden the statute book with this provision. Indeed, the Constitution Committee has returned to this subject in the past few weeks. We heard evidence on 21 November from the new Lord Chancellor, Mr Grayling, who again said that he was absolutely committed to making this objective happen. However, when asked why it did not happen, he said that it would be unfortunate to try to impose more legislation on the statute book when the objective could be achieved through the leadership which he and his predecessors said they were capable of. However, I point out to the House and the Minister that the amendment of the noble Lord, Lord Pannick, which I have signed, requires only 13 words to be added to the statute book. Therefore, it seems to me that the overburdening of legislation is not necessarily a powerful argument for rejecting it. The simple fact is that this is a very straightforward recommendation which could be absorbed into the Bill very easily.

The noble Lord, Lord Powell of Bayswater, who is, indeed, another signatory to this amendment and is not here this afternoon as he is in the United States, when speaking with the new Lord Chancellor, Mr Grayling, in our committee, referred again to the recommendation we had made about putting a statutory duty on him and the Lord Chief Justice. The noble Lord, Lord Powell, said—I think this was echoed by other members of the committee and is the point we all abide by—that it was not that we did not recognise that there had been progress but that,

“it has been at the pace of a pregnant snail”.

We now need to overtake the pregnant snail to which the noble Lord, Lord Powell, referred, and put this on the statute book in these very simple 13 words.

[Baroness Prashar]

My Lords, I rise to speak as the former chairman of the Judicial Appointments Commission. I have put my name to this amendment because I feel very strongly about this issue. I absolutely agree with what the noble Lord, Lord Pannick, the noble Baroness, Lady Jay, and the noble Lord, Lord Marks, have said. I think everyone now recognises that promoting diversity is a common endeavour—a joint effort to be made by the judiciary, the Ministry of Justice, the Lord Chancellor and the JAC. It is therefore important that all three have statutory responsibility, because that will focus their minds. As someone who was responsible for giving effect to the statutory responsibility of the JAC, I was always mindful of the fact that the focus really was on the JAC. Others sat around the table and said, “What is the JAC going to do?”

At Second Reading, the Minister said that this would be gesture politics. This is not gesture politics; it is about getting people to take responsibility, because there are a range of things that are outwith the responsibility of the JAC, where efforts need to be made. If your Lordships heard the debate earlier on the amendment of the noble and learned Lord, Lord Lloyd, concerning part-time working, you can see how formidable the opposition can be. We need to change that culture, impose that duty on others and provide an opportunity so that real progress can be made.