Crime and Courts Bill [HL]

Lord Thomas of Gresford Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Thomas of Gresford]

First, perhaps I may say a word or two on Part 1. The issue which has emerged in the debate is what the noble Lord, Lord Dear, called constructive tension; my noble friend Lady Hamwee referred to it as tasking arrangements. I agree that there is an utter lack of clarity in the Bill about the relationship between the proposed NCA, police and crime commissioners and chief constables. It would be very helpful if the noble Lord, Lord Henley, could bring before the House, at Report or in Committee, a draft protocol. Surely that is what will have to operate after the implementation of these proposals. There has to be machinery to sort out the different arrangements which will arise. I agree with everything that my noble friends Lady Hamwee and Lady Doocey and the noble Lords, Lord Ramsbotham, Lord Condon, Lord Prescott and Lord Harris, said with some passion on this topic.

I turn to Part 2 and start with the issue of diversity. The noble Baroness, Lady Jay, was correct when she said that it is the traditional career path which results in the judiciary which we have today. The judiciary does not reflect the diversity of today's society; it reflects the lack of diversity in the legal profession 30 to 40 years ago, when I was a junior member of the Bar, or even before that, when I was a solicitor. I recall that I had a lady pupil, which was regarded as a considerable improvement on the situation in the small Bar I was in at Chester; she was the only lady in the place at the time.

The traditional career path is that the judiciary is appointed from a core body of legal practitioners, mainly from the Bar, who have demonstrated judgment and integrity over the years of their practice. You might say that they have shown their merit. They are appointed in their mid 40s or early 50s to the county court Bench or to the High Court Bench. If they are fortunate, they become members of the Court of Appeal in their late 50s. If they are even more fortunate, a select few will reach the Supreme Court in their middle 60s. Some noble and learned Lords present may have achieved that rank before that age, but that is the generality.

It has only been possible in the past year or two to choose someone who has not followed the traditional career path to be a member of the Supreme Court, but there has been only one appointment so far. That is one of the problems that arose when we were discussing the retirement age of Supreme Court justices at 70, which does not give anybody a sufficiently lengthy tenure in that role. I agree with the noble Baroness, Lady Jay, that the Constitution Committee was correct in saying that the age of retirement should be pushed to 75 for the Supreme Court and to 70 in other cases. I am not even sure whether that is right or whether that is not a bit of ageism. We talk about discrimination on the grounds of gender, race or whatever: what about age? Should it not be on merit that people are forced to retire, rather than otherwise?

[Noble Lords]

Hear, hear!

[Lord Thomas of Gresford]

That goes down well in the House of Lords, it may not go down well anywhere else.

What is the alternative? A professional judiciary. There are models all over the world. You start off as a judge’s clerk when you get your degree. You take your first steps in your late 20s and get appointed to the local Bench. You climb the ladder. There is no need for lay magistrates. Eventually, you get a judicial position and there you are as a judge. Perhaps you can introduce diversity into such a judiciary rather more easily than you can in our system of the traditional career path, but is it desirable?

The noble and learned Lord, Lord Lloyd, opposed the career judiciary, and I agree with him. What I do not think is right is to introduce the concept of part-time judges to increase diversity, if that is the purpose behind it. You cannot job-share on the Bench. I recall being in a foreign jurisdiction, we were there for a fortnight, and on the third day the judge disappeared for coffee and never came back. When we went to see what he was doing, he was with his golf equipment in a golf bag, and he was flying out for the rest of the time we were there in order to play golf. We could not continue with the case. So both sides had to troop back to this country. You cannot job-share. If the purpose of having part-time judges is to increase diversity, it is not the right approach.

I now turn to county courts, of which I have great experience. I share the doubts expressed by the noble and learned Baroness, Lady Butler-Sloss. A single court may have some administrative advantages. However, there are two tests. First, does it increase or decrease access to justice? Secondly, does it improve the quality of the decision-making in relation to a particular case? As to the first question about access to justice, that depends on the maintenance of buildings and offices in every part. The noble and learned Lord, Lord Mackay, referred to the name “county”. The reason why we had county courts was that they were immediately available, not just the courts themselves but the offices where you could get writs and warrants—the noble Lord, Lord Elystan-Morgan, and I remember the one in Wrexham very well. That meant that, without witnesses having to travel too far, a case could be determined within the community. Secondly, on the quality of the decision, there is the continuity of the judge in a particular case. You did not apply on one day for an interim order and on another day for another interim order, only to find yourself in front of different judges when you got to the end of the process. You had continuity of the judge. Sometimes that was not a very advantageous thing, but that is what you had—the noble Lord, Lord Elystan-Morgan, knows exactly what I am thinking. So I am not sure about county courts. I hope that it is not just a cost-saving measure and that some real principle is behind it.

As to family courts, I welcome them. The expense and delay in public law cases has been recognised in the Norgrove report. Proceedings have indeed got out of hand, with expert after expert being called and cases dragging on in a way that does not assist—I think there is a delay of 55 weeks at the moment to get a case before the court. Can the Minister say what has happened to the Family Justice Board that was promised this month in the Government’s response to the Norgrove report? Hopefully that will be able to refocus private cases between partners and children on mediation and dispute resolution, which I hope is the way that we are going to go.

I went on the London Legal walk a week ago today to raise money, ironically, for CABs and law centres, which we debated at much length. I had the opportunity of discussing the present situation with some family law practitioners. I was told that district judges are quicker; magistrates are much slower but are more easily persuaded; and litigants who appear in person will inevitably make a case last twice as long—but I do not want to go back over areas that we covered extensively before.

As regards television, will it cause advocates to act differently in court? I doubt it. I do not know what your Lordships’ experience is but in this place I am not conscious of television cameras when I am speaking. I am conscious of them only when I am sitting next to the person who is speaking. That probably accords with your Lordships’ experience, particularly if the person I am sitting next to goes on for some time. Oh, I am being kicked. As for the drama of television performances, in the political field Prime Minister’s Questions must take most of the viewing time. The rest of the parliamentary proceedings are a cure for insomnia in the middle of the night. It is the drama of Prime Minister’s Questions that attracts an audience.

Where is that in the courts? In the criminal court, it is in the cross-examination of major witnesses, particularly victims. We can see that in the Leveson inquiry at the moment, as we can again with the cross-examination of the men in the dock. Yet the most dramatic moment is undoubtedly the delivery of the verdict. I can tell your Lordships that that can be hugely dramatic. People faint; there are screams and shouts. Nothing on the stage, in my experience, or in any film I have ever seen can match the drama of a jury returning a verdict. That is the moment, but of course it cannot be allowed on television. What we must not have is for the public to usurp the jury in any way to come to a conclusion, perhaps to vote over the telephone. Perhaps the Ministry might think it a good idea to have a number that everybody phones to give their verdict, and then it could collect the proceeds from the phone calls. That is not the way to proceed. We must keep the tightest possible control on television in the court-room. I agree that it would be right to have sentencing remarks. If anybody wants to watch arguments or judgments in the Court of Appeal that would, like parliamentary proceedings, be a cure for insomnia.