Crime and Courts Bill [HL] — Second Reading

Part of the debate – in the House of Lords at 4:16 pm on 28 May 2012.

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Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 4:16, 28 May 2012

My Lords, the right reverend Prelate the Bishop of Birmingham found himself down to speak both here and in the Grand Committee. Notwithstanding his character as a Lord Spiritual, he did not feel that was possible and he also felt that he had more to contribute in the debate in the Grand Committee. I therefore have to fill his place in the sense of taking it, although not in the sense that he would have fulfilled it at as a Lord Spiritual. I also wish to take this opportunity to express my gratitude for the work of the noble Lord, Lord Bach, as a Minister in the Department of Justice and also as a spokesman on legal matters in Opposition. I very much appreciated his support and help and all kinds of particular qualities that he had. I am delighted his place has been taken by the noble Lord, Lord Beecham, with his great experience as a member of the legal profession, making him well able to understand the problems that beset it.

I intend to single out one or two items. Immediately after me the noble Baroness, Lady Jay of Paddington, who convened the Constitution Committee with its very detailed consideration of judicial appointments, will speak. I do not, therefore, intend to get too deeply involved in that position. The noble Baroness will no doubt raise questions about some aspects of the recommendations which do not seem to have been fully reflected in this Bill so far. I want to start by talking briefly about the television provision in Section 22. This is not a new problem and during my term of office it became a very important issue. At that time the noble and learned Lord, Lord Hope of Craighead, who was then the Lord President of the Court of Session in Scotland, issued a practice note as a result of which the television authorities took a great interest in televising a number of cases in Scotland-something of the order of eight altogether. It was pretty obvious to me that they were interested in setting that up in places other than Scotland and in due course that interest was manifested in that they prepared a video with a considerable selection of television films of the courts in Scotland which was presented to senior members of the profession in England. It may be that the noble and learned Lords, Lord Woolf and Lord Lloyd of Berwick, will remember this. In any case, the result of these presentations was that the English profession was not encouraged to go down this road. There had never been a statutory prohibition in Scotland, although the courts were pretty cautious about it and, as I say, while the position opened up a bit at the time, it did not continue. However, noble Lords may have seen on television recently the sentencing remarks in a murder trial made by a Scottish judge who, following the territorial method of description, is called Lord Bracadale, after a most beautiful part of the Isle of Skye. I think that his remarks were broadcast widely and attracted a good deal of positive attention.

The Government proposals aim to open up the courts to television on the basis of orders made by the Lord Chancellor with the approval of the Lord Chief Justice. I would suggest that, in the vast majority of cases, the arguments and the decisions of the Court of Appeal will not attract the immediate interest of our public, whereas sentencing remarks will attract great interest. One has only to look at the print and other media to see that sentencing has a much bigger impact than arguments in the Court of Appeal. Occasionally, of course, a judgment from the Court of Appeal, particularly if it surprises the media, is given a good deal of attention, but I would venture that it would be wise to bring forward arrangements for broadcasting under the proper conditions appropriate to sentencing remarks instead of leaving them, as it were, to the end, which I gather from what I have seen so far is the suggestion.

The other matter I want to mention briefly in connection with television is that the exposure of the Houses of Parliament to television does not seem to have promoted a tremendous increase in the avidity with which the public enter into politics. I do not know the reason for that, although I could guess, and some noble Lords may have the advantage of me in that.

The next matter I want to mention is one that the Constitution Committee has certainly considered, and on this occasion I am going into its area to raise the issue of diversity. I believe that it is extremely important that there should be a sufficient amount of diversity within the judiciary as a whole to make it look reasonably fair in terms of job opportunities for all sorts of duly qualified people in the community. I think it is fundamental not to go down the road that people must be tried by those who belong to the same community as them; that would be completely inimical to justice. On the other hand, diversity in the sense in which I define it is highly desirable, and I believe that progress has been made. The statutory recommendation is that where two candidates are of equal merit, the consideration of diversity should be allowed to prevail. The occasions on which two candidates are of absolutely equal merit are likely to be fairly scarce, but the emphasis put on diversity in this statutory provision, although it may not strictly apply all that often, will help those who have to make these decisions to give effect to it as a desirable aim. Therefore, this is to be welcomed. I agree that it will not happen simply by legislation; a good deal of work is required. Of course, we are told that the new system is transparent-I am not sure what is meant by that because I certainly do not know exactly who is on the committees and so on-and transparency is a great thing: you are able to see through it in a way that you could not do when it was done by the Lord Chancellor on his own. The system has created a degree of breadth which the Lord Chancellor alone could never have attained.

There are one or two other matters I want to mention. In the clauses dealing with judicial appointments, paragraph 4 talks about a "non-legally-qualified" member, which might be a little ambiguous. Of course, it goes on to define it by saying that if you hold or have held certain judicial appointments that disqualify you for the House of Commons, you are not non-legally-qualified, and if you have ever practised or been qualified as a lawyer, you are not non-legally-qualified. This helps to emphasise the distinction between lawyers and judges that some lawyers are keen to make. I do not intend to pursue that, but later in the schedule you find that the Lord Chancellor can define a lay person by order after consulting the Lord Chief Justice. What is the difference between a lay person and a non-legally-qualified person, if any, for the purposes of this appointment?

That is rather an aside. I notice that the Lord Chancellor is to take responsibility for a good number of civil appointments. There may be a question over whether it is any longer appropriate to call him the head of criminal justice-I think he should be the "head of justice", and have thought that for a while.

The other matter I want to mention briefly is the family court. As the noble and learned Baroness, Lady Butler-Sloss, has said, this has been some time in coming. It was very much opposed in the 1980s, as I recollect, and when I was asked to create legislation in connection with the Children Bill, it seemed an opportunity to get something done in this area and get it past the Treasury, which was the obstacle in earlier times. At that time, the noble and learned Baroness, Lady Butler-Sloss, had just produced her report on the situation in the north-east, which in effect recommended a family court. Of course, I could not go the length of having what we have now in this Bill, but by amendments introduced by the Children Act I was able to create a system in which all the levels were available for family justice. This Bill does it in a different way. Apparently mine was good enough to last for 33 years or so-I hope that this one will last for much longer.

Finally, I think the proposals for the county court are to do with questions of jurisdiction. The question I ask is: in what sense is this universal court for the whole of England a county court? There are a lot of counties in England.