Crime and Courts Bill [HL]

Baroness Jay of Paddington Excerpts

Tuesday 18th December 2012 Lords Chamber

It is important that this amendment is accepted because clarity will be introduced where there is not clarity now, and the problems that occurred in the early stages of the life of the Supreme Court will not be repeated in future. The position is one such that I would have thought that the Ministry of Justice would share the views that I have just expressed. It should know, as I know, how important it is that the relationship between the courts and the Ministry of Justice is smooth and that it works efficiently. I believe that this amendment will achieve that.

[Baroness Jay of Paddington]

My Lords, I think I am the first non-lawyer to contribute, very briefly, to this debate. I see the Minister raising his hand and hope he will accept the point I will make.

As the House is aware, I am the chairman of your Lordships’ Select Committee on the Constitution and, as the noble Lord, Lord Pannick, said, have written to the Minister in that capacity about this amendment, simply to express the view that the committee, in its meeting last week, endorsed the amendment that has been proposed by the noble and learned Lord, Lord Phillips. I am very grateful to the Minister for writing back to me in a letter, with today’s date, which he concludes by saying:

“I can assure you that the Government remains committed to working with the Court to consider these issues”,

which he says are, of course, complex.

I was therefore a little disturbed to hear from the noble and learned Lord, Lord Phillips, in his introduction to the debate, that he felt that his discussions with the current president of the Supreme Court, the noble and learned Lord, Lord Neuberger, have run into the ground or “come to nothing”, which I think was the phrase he used. I would be grateful if the Minister, in replying, could perhaps elucidate, or expand a little more on that sentence that he has written in his reply to me, that the Government are committed to working with the court to achieve these ends.

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, feel compelled to say just a word in support of this amendment. I support it for the reasons already eloquently given by my noble and learned friend Lord Phillips of Worth Matravers and other noble Lords and have no intention of repeating those. I echo, too, his tribute to the present chief executive of the court, Jenny Rowe, who has worked tirelessly in setting up the court and progressing it over the three years that it has existed. I confirm—because I remember it all too well—what my noble and learned friend Lord Woolf said about the problem that the present wording of the legislation caused with regard to the chief executive’s role at an earlier stage in the court’s life.

On the critical point at issue, I respectfully suggest just this to your Lordships: constitutionally, it is no more appropriate for the Lord Chancellor to appoint the chief executive of the Supreme Court merely after consulting with the president of that court than it would be for the president of the Supreme Court, after merely consulting with the Lord Chancellor, to appoint the Permanent Secretary of the Ministry of Justice. The separation of powers means just that—the judiciary is not the Executive.

--- Later in debate ---

[Lord McNally]

I do not wish to pre-empt or shorten the debate, but it might help if I were to say something here. I hope that my noble friend Lord Marks will withdraw Amendment 6 as it is overtaken by the subsequent amendment. I will respond first to my noble friend’s Amendment 7, which seeks to apply a tipping-point principle to appointments to the UK Supreme Court.

The Government’s position has always been that a tipping-point principle should apply to the Supreme Court and we believed, as he said, that the tipping point in Section 159 of the Equality Act 2010 already applied to such appointments. However, as my noble friend Lord Marks explained, there could be a contrary legal view and I can see that there may be merit in the argument that this matter should be put beyond doubt. Therefore, I am happy to say that my right honourable friend the Lord Chancellor is content for me to take this amendment away for consideration with a view to returning to the matter when the Bill goes to the other place.

Amendment 8 concerns whether the Lord Chancellor and Lord Chief Justice should be under a statutory duty to encourage judicial diversity. Following the debate on this issue on Report, I agreed to discuss the matter further with the Lord Chancellor and Lord Chief Justice in order to reflect the strength of feeling expressed by the House. Amendment 8 is in response to that further consideration.

There is much agreement in the House about the importance of a diverse judiciary that more closely reflects our society. There is also agreement that strong leadership is needed to bring about this change. Amendment 8 helps achieve that leadership by giving a clear declaration of the importance of the Lord Chancellor and the Lord Chief Justice promoting diversity. Therefore, as I explained, in view of the reasons and undertakings I have given, I hope that my noble friend Lord Marks will withdraw Amendment 6 and will not move Amendment 7. I commend to the House Amendment 8, relating to a diversity duty, and I thank the Constitution Committee and other noble Lords who made the case so strongly for an amendment of this sort. I emphasise again that I will take away Amendment 7 for suitable representation in the other place.

[Baroness Jay of Paddington]

My Lords, my name is not on this amendment but I have spoken several times on this subject during the course of the Bill. I welcome the Minister’s further discussions with the Lord Chancellor, and the government amendment. As he said, it reflects the Constitution Committee’s considerations of this matter which, as he mentioned in the discussion on a previous amendment, have been going on since the beginning of this year. I am delighted that he has taken the view that he has and that he is proposing Amendment 8.

[Lord Pannick]

My Lords, I, too, am very grateful to the Minister for bringing forward Amendment 8. It is important to underline that Amendment 8, and the personal obligation that it will place on the Lord Chancellor and the Lord Chief Justice, is not to question in any way the commitment and the work done in this field by the current Lord Chief Justice, Lord Judge, which has been considerable. Nor is it to suggest that appointments to the Bench should be made other than on merit. There are highly qualified women and members of ethnic minorities at the Bar, in solicitors’ firms, in the CPS and in the government legal service, and every effort needs to be made to communicate the message that applications from them for judicial appointment would be specially welcomed.

The House heard in Committee and at Report the personal commitment of the noble Lord, Lord McNally, on the issue of promoting judicial diversity. I am pleased that through his efforts the amendment has been tabled on behalf of the Government.