Crime and Courts Bill [HL]

Lord Lloyd of Berwick Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, my first impression on seeing this year’s helping from the Home Office is one of great relief because it is, at least by recent comparison, relatively short and uncontroversial. There is also relief because it contains only one new offence: driving with drugs in the bloodstream, whether or not your driving is impaired by the presence of drugs. That brings drugs into line with existing law on alcohol and is to be thoroughly welcomed.

I also welcome Clause 17, in so far as it favours the creation of a new, unified county court. Surely, the explanation for the name rests in the jurisdiction, not in the fact that the court will be based in individual counties. I hope that we will not lose the name “county court”, despite the unification of all county courts.

I was less certain, I am bound to say, about the family court, for a reason which I shall explain, but having listened to the noble and learned Baroness, Lady Butler-Sloss, I find that I am completely convinced by her argument. Let me just explain the danger I foresee. That is that the unified family court may prove to be a step towards combining the High Court and the county court generally—in other words, a unified civil court. That has long been favoured in Whitehall, but it has long been resisted in the Strand—at least by some of us. Why? The reason is that it may tend eventually to diminish the role of the High Court judge. In my view, the High Court judge is the key to the whole judicial structure, and if he should come to be regarded as just another judge, as it were, just another rung on the judicial ladder—this is certainly how it looks from the list on page 115 of the Bill—the structure would indeed be threatened. It would be a step towards a career judiciary such as they have in France, which I would greatly regret. In the end, in my view, it would affect the quality of our highest judiciary. When the noble Lord replies, I hope that he will at least reassure me that there is no intention of creating a unified civil court, at the moment at any rate.

I come to Clause 18 on page 16 and Part 1 of Schedule 12 on page 167. Section 23(2) of the Constitutional Reform Act 2005 provides as follows:

“The Court consists of 12 judges appointed by Her Majesty”.

Nothing could be clearer than that. There is then a provision in subsection (3) for that number to be increased but not reduced. Now we are told that the court is to consist of,

“the persons appointed as its judges”.

If I may say so, that seems to me a masterly statement of the obvious. What else could the court consist of but its judges? As to the number of such judges, we are told that it is not to exceed 12 full-time equivalent judges. For the first time in our history we are going to have part-time judges sitting in our most senior court. There would seem to be no limit to the number of part-time judges who might be so appointed. We could have 24 half-time judges, or a mixture of full-time judges and part-time judges. I am bound to say that this is a development I would deeply regret. I wonder whether the interest in flexible-time working and so on justifies such a vital change in our most senior court.

Moreover, why is there a sudden need to provide for an overall reduction in the number of judges of the Supreme Court? Back in 2005 we chose the number 12 because that was the number of serving Law Lords. Is the suggestion that the current judges of the Supreme Court do not have enough to do and therefore the number should be reduced to 11 or 10? Surely anybody who looks at, or even glances at, the weekly law reports can see that they have more than enough to do—indeed, they are too busy rather than not busy enough—yet there is the suggestion that their number might be reduced.

Is the explanation, perhaps, that we do not have enough money to pay for 12 judges? That seems even more inconceivable, yet no other reason is given in the Explanatory Notes for the need now to reduce the number. Indeed, the extraordinary provision in Schedule 12 says that there is a problem about having “exactly 12” Supreme Court judges, almost as if we could afford 11 and a half judges but not 12. I am bewildered by the whole of this part of the Bill, and I hope that we will have an explanation and that it will be fully explored in Committee.

I turn to diversity, which is covered by Part 2 of Schedule 12. How we can get greater diversity among our judges, particularly in our higher courts, has been a problem for as long as I can remember. My recollection is that when we considered these matters in 2004 in the Select Committee, we spent more time on diversity than on any other single issue. Everybody agrees that we should have more diversity and that selection should be on merit. It is very easy to say that. Then along comes Sir Colin Campbell and others who, I remember, argued in 2004 that merit does not mean what one thinks—it is just a threshold. Once one passes the threshold you can take all these other matters into account, including diversity. One finds exactly the same argument advanced before the Constitution Committee by Professor Cheryl Thomas, at paragraph 95 of its report. In 2004, we rejected that argument out of hand. That is why one finds “solely on merit” in Section 63(2) of the existing Act, which entirely meets that argument whenever it is to be advanced. I find myself therefore entirely in agreement with paragraph 97 of the Constitution Committee report—I am glad that it said what is in that paragraph—which also said that “solely” should mean what it says.

However, the Government now come along with the bright idea that two candidates could be exactly equal in merit. What then? Does that give us a kind of loophole in which we can aim for diversity? I remember the noble Baroness, Lady Ashton, being asked in 2005 what would happen if two candidates for the High Court were of exactly equal merit. She laughed and simply brushed it aside, saying that if ever that time were to come at least she would not have to decide it. In truth, it is not a problem at all because, at any rate for the higher courts, it is not possible to imagine that two candidates in real life will be exactly equal. I therefore find myself in entire agreement with the views expressed in the Constitution Committee by the noble Baroness, Lady Neuberger, and by the noble and learned Lords, Lord Phillips and Lord Judge. It is simply not a way through; indeed, it is slightly worse than that. Suppose that one was a black judge who had been appointed to the Supreme Court—

[Lord Lea of Crondall]

I have been following the noble and learned Lord most carefully and apologise for intruding on this discussion among the experts in the field. I find the logic of what he has just said impeccable but is he happy that 80% of judges went to public schools, which represent 7% of the population of this country? He can fob it off on to somebody else but is he happy about that?

[Lord Lloyd of Berwick]

Of course I am not happy. I am as unhappy as anybody in this Chamber at the existing situation but we are trying to find a solution. All I can say to the noble Lord is that things are slowly getting better. We have put in provisions saying that it should be the duty of the appointments commission to search out, by widening the pool in which it looks, to find candidates who would be the best. I entirely agree with the noble Lord but I fear it is simply a question of time until we get a reasonable number of black people and white ladies among the judges. What worries me is that the Government are finding some way of trying to satisfy public opinion by saying that, in these circumstances, they can choose to make the Supreme Court more diverse. In fact, it is not going to happen. It is simply wishing away the problem as if it did not exist. If I had to describe the answer which they have given, I would have to say that I find it thoroughly trite.