Crime and Courts Bill [HL]

Lord Lloyd of Berwick Excerpts

Tuesday 4th December 2012 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

82A: Clause 18, page 17, leave out lines 3 to 5

[Lord Lloyd of Berwick]

My Lords, this amendment relates to the Supreme Court. It would leave out part of Clause 18 which would make way for the appointment of part-time judges in the Supreme Court.

I will start with some things on which I hope we are all agreed. First, that all judicial appointments should always be decided on the basis of merit, solely on merit and on nothing but merit. The Constitution Committee was quite right to reaffirm that fundamental principle, so I need say no more about it.

Secondly, we are all in agreement that we need greater diversity at all levels; that is to say, we need more women judges and ethnic minority judges, whether men or women. Happily, things are a good deal better in this regard today than they were 15 years ago. I will come back to the figures a little later. However, we all agree that still more diversity is desirable.

Thirdly, we need greater flexibility in our working arrangements; again, at all levels. There is already more flexibility than many people imagine. The noble Baroness, Lady Jay, in Committee quoted the words of the Lord Chief Justice, which I shall quote also. He said that,

“we should be able to organise the sitting patterns for female High Court judges or male High Court judges who have caring responsibilities, so that during, for example, half term they can be at home ... I think those sorts of very small changes ... will help”.

Those sorts of small changes are already, in fact, happening.

Almost every noble Lord who spoke in Committee said that what we needed was more flexibility. Again, I agree. The point of disagreement is on whether, in order to get more women and ethnic minority judges in the Supreme Court and the Court of Appeal, we should, for the first time, be appointing part-time judges at those levels.

I am aware that the Constitution Committee recommended the appointment of part-time judges in the High Court and the Court of Appeal, although not—I think I am right in saying—in the Supreme Court. However, that view was not at all widely supported in our debate in Committee. The noble Baroness, Lady Kennedy of The Shaws, for example, said that she agreed with the noble Baroness, Lady Jay, and the noble Lord, Lord Pannick, that this is, as she put it, “about flexibility”. She regretted that the words “part-time” had been used in the Bill. She asked whether we should not be able to reformulate the wording of the Bill so that it is about flexibility. I wholeheartedly agree with the noble Baroness, Lady Kennedy, that that is, indeed, what we ought to be doing. The noble Baroness, Lady Falkner, who I am sorry not to see in her place today, made exactly the same point in Committee. She said:

“The meaning of part-time or flexible working is that people … say openly to their employer that they will be occasionally needing flexibility in terms of their personal arrangements and will be taking that flexibility from time to time … That is the basis on which this clause should be debated”.—[Official Report, 25/6/12; col. 94.]

I could not agree more.

The noble and learned Lord, Lord Falconer, who I am sorry not to see in his place—

[Noble Lords]

Order!

[Lord Lloyd of Berwick]

He is here—hooray!—but not in his usual place. The noble and learned Lord also made the same point on that occasion. He said that he agreed with the noble Baroness, Lady Kennedy, when she said that this was about flexibility. He added:

“Part time, as a piece of language, may be a slightly misleading suggestion”.—[Official Report, 25/6/12; col. 99.]

I agree, except that I would not use the word “slightly”. The noble Lord, Lord McNally, was even more emphatic. At col. 102, he said that he agreed that “flexible” was the right word, not “part-time”. You could not put the purpose of my amendment more clearly than that.

However, the trouble for the Government is that that is not what the Bill states. Paragraph 2 of Schedule 12 says that instead of 12 full-time judges in the Supreme Court, there are to be an unspecified number of part-time judges. The Bill would therefore indeed provide for part-time judges, and that is what the Bill is about. Paragraph 2 of Schedule 12 is simply incapable of any other construction. If, as the noble Lord, Lord McNally, stressed, the right word is “flexible”, not “part-time”, I respectfully suggest that he agrees to the amendment and comes back at Third Reading with a new provision, reformulated, as the noble Baroness, Lady Kennedy, suggested, on the basis of flexibility.

Towards the end of his speech, the noble and learned Lord, Lord Falconer, said that the Bill would send out a message that flexible working was,

“available from the top to the bottom of our judicial system”.—[Official Report, 25/6/12; col. 101.]

He added:

“I cannot think of a better message”.

However, if the message is to be about flexibility, for goodness sake let us say so in clear and simple language—something that we do not have in paragraph 2 of Schedule 12.

There is apparently to be no limit to the number of part-time judges in the Supreme Court; nor is there any minimum for the number of full-time equivalent judges, as they are to be called. When I was a Law Lord, I never thought that I was a full-time equivalent Law Lord, but that is how I should have described myself. There is a maximum of 12 members in the Supreme Court but no minimum, so we could have four part-time judges in the Supreme Court, all of whom would be men if they were the best candidates, and eight full-time judges, making 10—but only 10—full-time equivalent judges, all of whom would be male. Is that really the sort of message that we should be sending out with this Bill?

I said that I would come back to the figures, and in particular the number of ethnic minority judges currently serving in the High Court and above. In 1998, only 10% of all judges were women, but by the end of 2011 the figure was 22%—more than double. In 1998, there were no women in the House of Lords, only one in the Court of Appeal and only nine in the High Court. By the end of 2011, there was one woman in the Supreme Court, five in the Court of Appeal and 18 in the High Court—again, more than double. In Committee, the noble Lord described these figures as being a mere trickle. I think that that is somewhat disparaging of the efforts of successive Lord Chancellors to get more women to the top—something they are succeeding in doing.

The noble Lord seems to want to speed things up by, as I understand it, making direct part-time appointments to the Supreme Court and the Court of Appeal. But where are these part-time women to come from? They will not come from the Court of Appeal or the High Court because there are no part-time women in those courts. What makes him think that, if we were to create new part-time vacancies in the Supreme Court, the best candidates would always be women and not men? In any event, would it be fair and just to promote part-time to the Supreme Court a woman who had not already served in the High Court and the Court of Appeal, once described as the only form of slavery not abolished in the 19th century?

The truth is that, if we open the Supreme Court and the Court of Appeal to part-time judges, it will not make the slightest difference for years to come, if ever. The best way to get more women at those levels—and we all agree that there should be more—is to go on as we have been and to increase flexibility as far as we can so that women are not put off applying. We should let the best candidates come to the top in the ordinary way, as they always have done. That is how it has worked in Canada, where four out of nine Supreme Court judges are women, and in the United States, where there are no part-time judges. The same thing will happen here only if we let it happen in the ordinary way. That is the message that we need to send out to the women who are currently on the verge of a judicial career, and that is why I am asking the Government and the Opposition to think again about this and to come back at Third Reading with something that better meets the needs. I beg to move.

--- Later in debate ---

[Lord Pannick]

I am sure it is true that all Supreme Court justices—particularly the 11 men, if it is those to whom the noble and learned Lord is referring—have family care commitments. However, the same point can be made about all senior men in all other professions. We all have family care commitments. The difficulty, as the noble and learned Lord knows, is that the family care commitments that address the needs of children and, perhaps more relevantly at the senior levels of the judiciary, aged parents, tend in our society to fall on women rather than men. That is a social fact.

I say to those who support the amendment that I entirely understand the points they make about practical difficulties but it is important not to exaggerate the problems. Judges regularly take time off from judging to do other things. The noble and learned Lord, Lord Woolf, mentioned that judges are regularly appointed to head inquiries. Supreme Court justices sometimes take four to six weeks off to sit on the Court of Final Appeal in Hong Kong. One could give many other examples. The idea that the system cannot—

[Lord Lloyd of Berwick]

Is that not the perfect example of what one means by flexible working as opposed to part-time working? They are not currently appointed part-time, but that is possible because of flexibility. That is what we should be aiming for.

[Lord Pannick]

My answer to the noble and learned Lord is that if the legal system is able to accommodate this type of problem—that judges regularly take time off to carry out other activities—then, like all other professions, it ought to be able to accommodate a female judge taking time off on a regular basis for domestic reasons. It remains to be seen whether allowing part-time judges to sit will result in more women judges at high levels. These powers are permissive, not obligatory, and no woman or man—although one anticipates that it is likely to be women who are so appointed—will be appointed unless it is practical.

My primary objection to these amendments is based on the factor to which the noble and learned Baroness, Lady Butler-Sloss, referred—which is the message that is sent out—although I arrive at a different conclusion. I suggest that it would be a very unfortunate message indeed for the law to confer an exemption for the senior judiciary from one of the most important means of enabling talented women to rise to senior positions in all professions. Watering down the part-time provisions in this Bill would wrongly suggest, wrongly, that the senior judiciary is not serious about doing all that it reasonably can to assist talented women to be appointed at senior levels. I hope that the noble and learned Lord will withdraw his amendment.

--- Later in debate ---

[Lord Lloyd of Berwick]

I hope that the noble Lord will be able to answer the key point. I agree with all that, but flexible working does not require part-time working.

--- Later in debate ---

[Lord McNally]

My Lords, as far as I understand, the process of appointment would be exactly as it is now. If, in the process of discussing a candidate for the Supreme Court, it became obvious that there was a candidate who would require flexibility in order to take up the appointment, that would be taken into account. But there is no question of the president of the Supreme Court, or anybody else, being ordered to take a part-time member because of this provision. It is there to give what it is hoped will be encouragement to those who have responsibilities outside their judicial responsibilities, so that they do not find that a bar to progress, but there is no special process of selection envisaged in this.

[Lord Lloyd of Berwick]

My Lords, I found the Minister’s reply very unsatisfactory because it seemed to me—I hope I am not saying what I should not—that much of his brief was written before he realised what point I was going to make.

[Lord McNally]

Half my remarks were made on notes that were there. The noble and learned Lord has now pressed for two full debates on whether “flexible” and “part-time” are interchangeable or whether one over-rides the other. I and the noble Lord, Lord Beecham, in an act of unity, having tried to explain—there is nothing in the brief on it—I continue to puzzle about why the noble and learned Lord cannot see the interchangeability of the two. I have also got his note, the billet-doux he left me last night, which further pressed the case, but a large number of people, whose opinions I express, do not find the confusion that he does about the two terms.

[Lord Lloyd of Berwick]

All I can say by way of reply is that nobody except the Minister and the noble Lord, Lord Beecham, regards flexible and part-time work as being interchangeable. They clearly are not. One is one thing and one is another. If the Bill were to take effect, one would have to calculate at some point how many part-time members, as it were, occupy the time of the Supreme Court, and how many full-time members. The thing is simply impractical on the basis of salaried part-time members who would be paid less than full-time members. Those are simply the financial impracticabilities, but there are also all the other impracticabilities that have been pointed out by other Members who have spoken. It would simply be, as has been said more than once, a nightmare to work out in practice. It would raise expectations which I suspect that we all know would never be fulfilled.

It would be so easy for the Minister, consequent on all the things that were said in Committee as well as by other speakers today, to substitute “flexibility” for “part-time” working. Then we would all agree. The suggestion made that these are two ways of looking at the same thing, in my respectful submission, simply makes no sense. But obviously I am not going to persuade the Minister, and I suspect that the Opposition will take the view that they have indicated that they will take. I regret it very much. However, for the reasons that I have tried to give, I seek the opinion of the House.

Amendment 82A negatived.