Crime and Courts Bill [HL]

Lord Deben Excerpts

Wednesday 27th June 2012 Lords Chamber

[Baroness Prashar]

My Lords, I support the amendment and that tabled by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Beecham, because this duty should be extended to the Lord Chancellor and the Lord Chief Justice. I will say at the outset that I strongly refute the comments I have heard elsewhere that this will be perceived as gesture politics. I do not think that it will be, because it is a joint endeavour. Promoting diversity is a matter for the Lord Chancellor and the Lord Chief Justice as well as the JAC. They have a part to play and they need to take meaningful action, so this duty should be extended to both of them.

What has been the result of this disparity? My experience as the chairman of the JAC was that one heard a lot of warm words, but they were not often followed by purposeful action. Moreover, all the criticism about slow progress was directed at the JAC, which became a convenient fig leaf for senior politicians and interest groups. Too much attention was paid to the selection process. There was an almost forensic examination of each stage of the process, whereas the barriers which were outwith the responsibility of the JAC received very little attention. That left the JAC exposed and some of the structural obstructions were not dealt with as speedily as they should have been. There were endless debates about the JAC’s processes and a disproportionate amount of time was spent on making minor changes to the selection process, which in the long run may not have had a major impact. However, they detracted attention from the other substantial changes for which, as I keep saying, the responsibility lies elsewhere.

If the JAC drew attention to the changes that were needed in order to widen the pool and improve diversity, in my view they were not often given the consideration they deserved. If there was a duty on the Lord Chancellor and the Lord Chief Justice, they would have been much more focused on them. Perhaps I may give two examples. There is the issue of non-statutory eligibility criteria in vacancy requests. An analysis made by the JAC as early as 2008—I hasten to add that this was done after the noble and learned Lord, Lord Falconer, had left—found that a key factor in limiting the ability of the JAC to make a significant contribution towards improving diversity was the usual requirement for the Lord Chancellor to stipulate in vacancy requests to the JAC that candidates for salaried judicial posts should have had previous fee-paid experience. This was a real barrier to a large number of potential candidates, such as members of the employed Bar and, of course, solicitors. The JAC argued for this factor to be made “desirable” rather than “normally required”. However, there was a reluctance to change. These concerns were formally raised by the JAC in response to the consultation on the Green Paper The Governance of Britain, in 2008, after two years’ experience of working with these requirements, by which time the commission was able to analyse their impact. I give that as an example of something that obstructed progress towards diversity.

Let me give another example. In 2008 an agreement was reached that every post in the circuit Bench selection exercise which the JAC was due to run should be open to part-time working, but potential candidates said that while the commitment was welcome in principle, it was not sufficient to encourage them to apply without an indication of an acceptable part-time working pattern. That is quite important. After considerable discussion, it was agreed that each circuit would make two posts available for part-time working. It took an enormous amount of time to arrive at this arrangement. These were seen as concessions to the JAC, and not a joint effort to promote diversity. The JAC always felt that it was a tiresome body which was constantly asking for concessions. It should have been a joint endeavour. If everyone had been involved and had had the same responsibilities, they would have given closer consideration to the JAC.

Other changes that the JAC proposed were rejected on the grounds of so-called business needs. Business needs always trumped diversity considerations, and the lack of purposeful engagement was frustrating. It was compounded by the fact that all the criticism about the slow process, both by the interest groups and the politicians alike, was directed at the JAC. I could go on because I feel very strongly about the amendment, and totally reject any assertion that this is gesture politics. I very much hope that the Government will consider the amendment.

[Lord Deben]

My Lords, I would like to continue the effort that I have tried to make over past days to ensure that these decisions are not made merely by the legal world itself. I find this debate very peculiar indeed. I cannot think of a business which is worth its salt that does not insist that the chief executive has a responsibility for these matters. I sit as chairman of a number of companies, and in every case I have a personal responsibility for health and safety. I think it is important and I think that I have to take that responsibility. The direct responsibility is for the chief executive.

I know that it hurts many of a traditional kind in the legal profession for me to make comparisons between the Lord Chief Justice or the Lord Chancellor and such mundane people as chairmen and managing directors. However, it seems to me not an unreasonable parallel, and therefore I find this whole debate—as I found a debate in an earlier Session—to be really peculiar indeed. It should be the other way round: one should start off by saying that there are responsibilities of this kind lying on the shoulders of those who direct the whole shebang. One should not go half way down it—I am being rude now—and say, “It does not arrive up here, it comes down somewhere here”. One can repeat it, of course. It is perfectly reasonable to say, “It is also to be done here”, particularly if one has some suspicion that it is not being done lower down quite as well as one would like. However, one really cannot in any reasonable way exclude those who set the tone from issues which are the tone.

I very much accept the noble Baroness’s comment about this not being gesture politics. It is not gesture politics, because we are saying that we need to get rid of the fundamental view that merit is an easily definable thing and that it is terribly easy to say that somebody has got half a point better than somebody else. That is not what happens in business. We all know that when one looks at a number of people, one sees that they have differing contributions to make. One can say, “Yes, I have two people here who, on balance, both have the same contribution to make, as people”. The next question is: what are they making a contribution to? One says, “Let me make an assessment of what they are contributing to”. If, in most cases, they are making a contribution to what I would call a community, a panel or a group, then I might say that they are equal, but that this particular person makes less of a contribution to the whole than the other person, who would do more for the whole. That is the argument behind these elements of the Bill.

This is not a matter of tokenism, but a matter of reality, and it should be seen as such. If it is a matter of reality, it cannot be restricted to people lower down the pecking order. It must start with people at the top. I therefore beg the Government not to come back with the usual civil servant explanation to the effect that, “These people do this anyway, they are of a very high standing. We could not imagine them thinking in any other manner and, my goodness, why could you?”. I would reply that the present Lord Chancellor is an old friend of mine and a man of impeccable standards in this way. However, he still ought to be under the law; it still ought to be part of the way we present it.

It is really important simply to say that this is not a minor matter to be applied to people lower down, but a central matter to be applied from the top, because it is too important to be particularised. The only way not to particularise it is by saying that the chaps or girls in charge must take this responsibility. I very much hope that on this occasion the Government will see that this is a very reasonable amendment, that it could be taken without any difficulty at all, and that it could in fact be seen to be valuable step.

[Lord Woolf]

My Lords, just for the sake of the record and having put my name on this amendment, I make it clear that I support it for the reasons so admirably given by those who have spoken, including the noble Lord, Lord Deben. If I may say so, he showed remarkable acuity as somebody who is not a lawyer in contributing to this debate.

--- Later in debate ---

[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.