My Lords, the amendment would ensure that persons representing the views of police and crime commissioners are included in the definition of "strategic partners" set out in Part 1. The definition refers to,
"such persons as appear to the Secretary of State to represent the views of local policing bodies".
Earlier in Part 1, a "policing body" is defined as including within its scope a police and crime commissioner. Perhaps the Minister will tell us whether the reference to "local policing bodies" in the definition of "strategic partners" also means local police and crime commissioners, or whether it means something different from the earlier definition of "policing body"-and if so, why.
It is important that police and crime commissioners are included as strategic partners. Under Clause 3, the Secretary of State is required in determining strategic priorities for the National Crime Agency to consult strategic partners. Bearing in mind that a police and crime commissioner will be responsible for issuing a police and crime plan and in so doing will have to have regard to the strategic policing requirement issued by the Secretary of State, it would seem odd if the Secretary of State were not required when determining his or her strategic priorities for the National Crime Agency to consult with persons representing the views of police and crime commissioners. Likewise, in preparing his or her annual plan, the director-general of the National Crime Agency must, under Clause 4 in Part 1, consult with the strategic partners. It would seem inappropriate if these partners did not include police and crime commissioners, bearing in mind that the annual plan sets out how the director-general intends that the National Crime Agency functions should be exercised. This could well have an impact on the functioning of local police forces, including whether that force is efficient and effective, which it is a statutory responsibility of a police and crime commissioner to secure.
We also learnt from the Minister last week in Committee that the unelected director-general of the National Crime Agency could direct a chief officer of an England and Wales police force to perform a task of unlimited magnitude, impact and scope specified in such a direction without having to obtain the consent of the Secretary of State or even having to consult the elected police and crime commissioner responsible for the force whose chief officer the director-general is ordering to take that particular course of action. That might be, for example, as the Minister told us,
"to take the lead to disrupt a human-trafficking gang that is predominantly based in that force area".-[Hansard, 20/6/12; col. 1800.]
Potentially, that is hardly a minor task in terms of either time or resources.
On top of that, we were also told by the Minister that the unelected director-general of the National Crime Agency could direct a chief officer of an England and Wales police force to provide unlimited specified assistance to the National Crime Agency, also without having even to consult the elected police and crime commissioner responsible for that force-even though, as the Minister said, providing assistance involved transferring resources from the command of one force to another force or organisation.
To many people, that will seem an odd state of affairs, designed to marginalise the elected police and crime commissioner. If elected police and crime commissioners, now that we are going to have them, are not even one of the strategic partners to be consulted by the Secretary of State when determining strategic priorities for the National Crime Agency, or by the agency's director-general when preparing the annual plan, then it would be further confirmation that police and crime commissioners are intended, in many ways, to be little more than figureheads-a situation and role that any self-respecting elected police and crime commissioner will, I am sure, be unwilling to accept. I move this amendment and await the Minister's response.
My Lords, I have Amendment 68 in this group, and it is another amendment to the definition of "strategic partners". The relevance of strategic partners is their role as consultees of the Secretary of State when she determines the strategic priorities for the NCA. We are all familiar with the scope and importance of the NCA's functions. My amendment would add to the list of strategic partners the Security Service, the Secret Intelligence Service and GCHQ. There was a time when a fiction was maintained about the existence or otherwise of at least one of these organisations but I think that we have moved beyond that. It seems to me unthinkable that the Secretary of State, given the subject matter of consultation on strategic priorities, would not consult those agencies.
Last week, on Second Reading of the Justice and Security Bill, I commented on how the priorities and concerns of the Office for Security and Counter-Terrorism, which is embedded in the Home Office, seem to have affected-I am not making a judgment on this-all the Home Office's thinking. As I say, I simply cannot believe that these services and agencies would be omitted in such a consultation. If it is not the case, then why not say so? If it is, then why is it?
"such persons as appear to the Secretary of State to represent the views of local policing bodies".
We have used those terms because local policing bodies include not only the PCCs but two others-the Mayor's Office for Policing and Crime, and the Common Council of the City of London, which acts as the police authority for the City of London police area. For that reason, the noble Lord's amendment is completely unnecessary in that the provision achieves everything he seeks. Having said that, I accept what he says about the necessity of discussing all these matters with the people he was concerned about. Just to put him at ease, the term "local policing bodies" covers them all.
I turn now to my noble friend's amendment, Amendment 68. I think she said that there was a time when a fiction was maintained that the intelligence and security agencies did not exist. We now acknowledge that they do exist and we accept that the functions and responsibilities of these agencies go much wider than purely crime reduction and criminal intelligence. They have a limited statutory function in relation to serious crime because is not their primary focus and they are therefore not included in the list of partners that the Home Secretary or the director-general must consult-it is the word "must" that I stress to my noble friend on this occasion-when setting strategic priorities in drawing up annual plans. However, I can give her an assurance that the security and intelligence agencies will have an important relationship with the NCA. Provisions in the Bill allow the Home Secretary and the director-general to consult them when it is appropriate to do so. What we think is not appropriate is the use of the word "must" here, and that is why we have not included the agencies in the list set out in the interpretation clause, Clause 16.
I hope that that explanation is sufficient for my noble friend, and that the explanation I gave with regard to Amendment 67 is sufficient for the noble Lord, Lord Rosser.
I thank the Minister for his reply and for confirming that the reference to local policing bodies includes a police and crime commissioner. I think he also said that the provision has been written in this way-namely with a reference to local policing bodies-because, as well as a police and crime commissioner, it also includes the Mayor's Office for Policing and Crime and the Common Council of the City of London. That rather begs the question of why earlier in the clause, where a "policing body" is also defined, it states that it means a police and crime commissioner, the Mayor's Office for Policing and Crime and the Common Council of the City of London. When we look down the same page to the "strategic partners", why does the clause not make it equally clear by simply repeating that they include a police and crime commissioner, the Mayor's Office for Policing and Crime and the Common Council of the City of London, instead of describing them as "local policing bodies"? Alternatively, if the phrase "local policing body" is satisfactory, why in the reference earlier on the page to "policing body" does it not simply say, instead of setting out the first three categories, "local policing bodies"?
My Lords, I am not a parliamentary draftsman-I do not think that I ever will be, and I am simple in terms of my understanding of the law. But even I, and I dare say the noble Lord, can probably grasp this one little point. If he looks up to line 4 on page 14 he will see that the meaning of "policing body" is set out in paragraphs (a) to (c):
"(a) a police and crime commissioner;
"(b) the Mayor's Office for Policing and Crime"
"(c) the Common Council of the City of London as police authority for the City of London police area".
Later the meanings under "strategic partners" are set out, with paragraph (c) stating,
"such persons as appear to the Secretary of State to represent the views of local policing bodies".
The local policing bodies go back to "policing body" at that point. It does not take much understanding of drafting-I appreciate that I am not a draftsman-to understand that what is included in the first bit, "policing body", must be included under "strategic partners".
The only comment I would make in response to the noble Lord-like him, I have no great wish to prolong this matter-is that since the first reference is to "policing body" and the second is to "local policing bodies", one might be entitled to ask, what is the difference between the two? Is there a subtle difference or not? Why is it not simply described again as "policing bodies" when it comes to the definition under "strategic partners"?
I think that the noble Lord is protesting too much, but I will consult those who advise me on drafting matters and ask them whether they can give me a good explanation. I think that "policing bodies" must include "local policing bodies", so there is no problem. The noble Lord is looking for conspiracies here, I suspect, but there is no conspiracy-it is straightforward, I can assure him of that. We are including the PCCs and the other two that I mentioned.
I assure the noble Lord that I do not think that there is a conspiracy. He has made it clear what the reference to local policing bodies covers and that is now in Hansard for the record. I do not believe in any conspiracy theory. However, I would certainly be interested to know, if he would write to me, why it is described as "policing body" in one place, with a definition, while a bit further down-under strategic partners-rather than repeating it as "policing body", it says "local policing body". One might wonder, why the difference? The Minister has said that he will look at it and write to me and I am extremely grateful for that. No, I do not believe there is a conspiracy, because the Minister has made it clear that police and crime commissioners are included in the reference to local policing bodies. This amendment sought to ensure that that was the case and in the light of the Minister's response, I beg leave to withdraw the amendment.
Amendment 67 withdrawn.
Amendment 68 not moved.
Clause 16 agreed.
Clause 17 : Civil and family proceedings in England and Wales
Moved by Lord Beecham
68A: Clause 17, page 16, line 21, at end insert-
"(7) There shall be no restriction on the number of days that a family magistrate may sit in the family proceedings court."
I shall speak to Amendments 68A, 68B and 68C and, notionally, give an indication on the stand part question on Clause 17.
I begin by repeating a declaration of interest: I am an unpaid consultant in the firm of solicitors of which I was a senior partner. I will be saying something about the Court of Protection, with which the firm and I have had dealings which partly inform some of what I will say this afternoon. In addition, I should perhaps, through an abundance of caution, declare that my daughter sits as a part-time deputy judge; but whereas I have occasionally briefed her when I was at the office, she has not briefed me in connection with today's proceedings.
I shall go from the very particular to the general in discussing these amendments, and deal first with Amendment 68A, which seeks to remove the limits on the numbers of sittings that magistrates may make when sitting in the family court. The noble and learned Baroness, Lady Butler-Sloss, raised this matter at Second Reading and I share her opinion that it is undesirable to impose such a limit, given the necessity of building up expertise and providing continuity on the part of that part of the magistracy which deals with these very sensitive family issues. That is not a view universally shared, but it is my view and it will be interesting to hear the Government's response and their justification, if they see that there is one, for maintaining the limit. I believe that the Norgrove report advocated its abandonment and it has logic on its side.
The remaining substantive matters are Amendments 68B and 68C. I should say immediately that the indication that I would move that Clause 17 not stand part of the Bill was a procedural device to allow a general debate which has been superseded by the amendments that I have now tabled. I will not move that Clause 17 not stand part of the Bill. We accept that it is desirable to move to the structure of single courts. The question is how they will be administered and what steps can be taken to ensure that the whole system of justice is adequately reviewed, kept under review and improved from time to time.
Amendment 68B seeks to require a report on the creation of the single court and how it works. As I say, we accept the concept in principle. We would like the Government to undertake a review after a relatively short time to see how it works in practice. There are concerns-some of which I will touch on when I come to the next amendment-around access, the venue and the like, particularly in the civil courts. Also there is a question about how the new family court will work. We are reasonably confident that it will work provided that it is adequately resourced but it would be sensible to review the situation before much time passes.
Having said that, my main concerns are reflected in Amendment 68C, which seeks an annual review by the Lord Chancellor of the workings of the whole court and tribunal service to take into account the experience that will accumulate over time, particularly the experience of practitioners and parties, but also to reflect other changes which are now in train. The civil justice system is undergoing massive change, not only as a result of the proposals in the Bill but also as a consequence of Lord Justice Jackson's comprehensive if-as we have debated at some length on a previous Bill-controversial review which paved the way for a radically different approach to the provision of legal aid and advice, and the financing of litigation.
In pages 428-34 of his report, Lord Justice Jackson called for improvements in courts administration in the light of a pervasive feeling of dissatisfaction on the part of many litigants and their advisers, occasioned in part by a high turnover of staff and an excessive time spent on processing documents unlikely to involve judicial input. His report called for the establishment of regional centres which could attract long-term staff. It was felt that if you had a small number of centres instead of having them dispersed across the whole country you would be able to find and retain staff with the necessary expertise. There seems to be some force in that intention. However, Lord Justice Jackson stressed that it would,
"be wrong to compel everyone to issue proceedings at regional centres. Litigants who wish to issue claims in person at their local county court and to pay fees at the counter should be free to do so".
In the event, the Government, for ever waving the banner of localism-I remind your Lordships that "waving" can be spelt in two different ways-have established a system in which all money claims have to be issued not just in regional centres but exclusively in Salford. Salford not only hosts the BBC and Manchester United, it also-
Not Manchester United. I withdraw that disgraceful slur on Salford or Manchester United-whichever way you want to look at it. All right, we have the BBC and the Lowry gallery in Salford and we now have the courts' business centre there, too. Unfortunately, the establishment of that centre has led to a torrent of complaints about delays and loss of documents reported on several occasions; for example, in the Law Society Gazette on
"evidence of a civil courts service reaching breaking point".
The same story describes district judges being put up in hotels when on duty in Salford, because that is where they have to go, with a deputy district judge-not my daughter-complaining:
"New cuts are announced daily, and yet HMCTS is now squandering taxpayers' money on hotels".
Nor is this the only part of the system to have suffered major criticism from parties and the legal profession. The Court of Protection and the Office of the Public Guardian have long been the subject of complaints over delays, failure to reply to correspondence and, most importantly, failure to protect the interests of people who, by definition, are incapable of looking after their own affairs. This neglect, incompetence or inefficiency can take two forms: first, the management of the funds in court held on behalf of claimants where the Court of Protection has been roundly attacked for keeping funds in accounts paying all of 0.5% interest and secondly, on the other side of its responsibilities, failing to organise timely and effective visits to patients in order to monitor progress.
Again, staffing levels appear inadequate in terms of both numbers and skills. I had occasion some years ago to write to my noble and learned friend Lord Falconer to point out that in a case that I was dealing with in the Court of Protection, it was virtually impossible to secure a reply to correspondence concerning the patient's affairs, that there was apparently no single individual in charge of any file-it seemed to be passed around the office-and I did not feel that anything like an adequate service was being offered to the deputy, or the receiver, as he was then known. The nomenclature has changed since. The patient was a young man who had suffered very severe brain injuries. There was a substantial amount in court, but there were also very substantial problems. It seemed that staffing was an issue. I have to say that that issue-not just that individual case, of course-did not appear to receive any adequate response in terms of change, and although there have been changes in the system with people moving out from London to Birmingham and Nottingham, the problems still seem fairly substantial.
There has, of course, been a change in the law involving the Court of Protection because now instead of the enduring power of attorney, we have the lasting power of attorney, a new form of document to facilitate the conduct of the affairs of people incapable of looking after themselves. That has led to a huge increase in the number of documents being filed, but that has not apparently been matched by a sufficient investment in staffing or IT, and there have been recurrent problems in this area. Indeed, the Court of Protection was the subject of a critical "File on 4" programme on BBC Radio 4 in 2010 that highlighted cases, in one of which a patient said that the Court of Protection had cost him £50,000 because of the way it had managed his financial affairs. There was a series of other cases and there have been other newspaper reports, including in the house journal of the Conservative Party-the Daily Mail-that were very critical of the way that the court has operated. Indeed, last November, Sir Nicholas Wall, who heads the Court of Protection, called for it to be opened up to public scrutiny. It is fair to say that his principal concern was not so much the matters that I have been referring to but the delicate and difficult issues about making judgments on medical aspects and the degree to which these were at one time made in secret-certainly not in the full light of day. So, from a variety of perspectives, there are difficulties with that particular area of the court system.
In addition, the Government are abolishing the Public Guardian Board, which was established to have oversight over the operation of the Mental Capacity Act, and are replacing it with three people. Once again, because we have discussed this in the first part of the Bill in relation to the National Crime Agency, the Government are vesting a dual role in a single pair of hands. The public guardian is also to be the chief executive of the guardianship office. So there is no separation of powers; at the moment there is a Public Guardian Board, which is just about to come to an end, with an independent chairman and independent people serving on it. That will be replaced effectively by two people taking on this combined post of chief executive and public guardian-one will have IT experience and the other experience in the mental health field. That is not a satisfactory arrangement.
In her final report, the outgoing chairman has called on the Government to reform and streamline the lasting power of attorney process, which I have just mentioned, replace a creaking IT structure, as she puts it, develop relationships with stakeholders and appoint a powerful and independent champion for the Mental Capacity Act. I invite the Minister to say, not necessarily tonight because he has not had notice of this question, whether he will respond positively to those suggestions.
In addition to these particular problems, there is a major area of concern over access to justice in two senses. The first might be described as physical access, which for many people means local courts within a convenient distance. Many county and magistrates' courts have already closed, making it more difficult for parties and witnesses to attend. The Government need to ensure that, while they perfectly properly seek to reduce the cost of the system, they do not deter nor disadvantage those who need access to it. Bear in mind that they have already ignored Lord Justice Jackson's recommendation about allowing proceedings and money claims to be issued at a local court. The closure of courts makes any kind of access that much more difficult, unless you happen to live close to a building which has been retained.
In that context, it will be important to assess the impact of existing and any planned closures and staff reductions as well as the way in which allocations to local venues-which will happen under the Bill, but cases will be allocated to a local court- actually works. The Minister may have indicated to the noble Lord, Lord Elystan-Morgan, that at the moment no further closures are in the pipeline but perhaps he could indicate whether that can be reopened in the context of the next review of the national finances, when the Government are apparently looking for a further substantial tranche of savings.
Allied in part to this is the question to which the noble Baroness, Lady Seccombe, alluded in the Second Reading debate, the question of the lay magistracy. As I said at Second Reading, there are some feelings that there is an inexorable slide towards a paid judiciary in the lower courts and, where this displaces lay magistrates in criminal cases, criminal justice runs a risk of moving from involving trial by one's peers based in the community to a professional system less rooted in local communities. That is a questionable direction and perhaps the Minister could indicate whether the Government have any plans to continue this trend. The point of my amendment is to ensure that these matters are at least considered from time to time.
Then there is the impact on access to civil justice of the Legal Aid, Sentencing and Punishment of Offenders Act. With some 650,000 people being excluded from legal aid and advice, it will be essential to monitor the impact not only on those who need such advice and the organisations that the Government expect to take the strain, but on the courts and tribunals themselves. There will almost certainly be a substantial increase in the number of litigants in person, with all the difficulties that that can present to a tribunal-whether a court or an administrative tribunal-in managing and helping people through the process when they do not have the benefit of legal advice or assistance.
The Government also rely heavily on mediation and alternative dispute resolution as alternatives to litigation. However, as some of us said in the debates on the Legal Aid, Sentencing and Punishment of Offenders Act, these are by no means appropriate in all cases. It will be essential to assess their efficacy, which will depend on both the availability of suitably qualified personnel to conduct the processes and at least a rough equilibrium in the capacity, in all senses, of the parties. Again, it will be important to review and report on progress in these matters and how the new system is working, and to make changes if necessary.
The Government have also increased the financial limits in the small claims court and plan further increases in future. This potentially disadvantages claimants, who will be unable to recover their costs even when successful. Again, the impact of this policy, the prime beneficiaries of which will be insurance companies in personal injury cases and the like, will have to be assessed. The Government should commit themselves to a thorough review before any further increase to the small claims court limit is made, for which parliamentary approval should be sought.
Four years ago, in his report Should the Civil Courts be Unified?, Sir Henry Brooke rejected the notion of combining the High Court and county courts, which is not the proposition in the Bill, and did not even appear to call for a single county court, although we do not dissent from that proposition, provided that the mechanics of issue and venue are satisfactory. However, Sir Henry said that,
"we have been sleep-walking into a crisis, so far as civil justice is concerned".
This was under the previous Government; it is not a matter that has appeared overnight. He called for,
"a five-year strategy for reviving the civil justice system, to be implemented collaboratively by the judiciary, the Ministry of Justice and HM Courts Service".
I would add the Tribunals Service to that. Instead, we have a piecemeal approach that, moreover, does not at all ensure that the strategy includes, as Sir Henry recommended,
"adequate financing of the system on a long-term sustainable basis".
It is for this reason that I move the amendment, which is intended to ensure that the Government keep all these matters under review, together with all those affected by the provisions in the new legislation-within the service, those who use the service and those who practise in the service-from the judiciary to the individual applicant, appellant or litigant. In that way, the Government's aspirations can be better fulfilled. It is necessary to respond to changing circumstances, to be as economical as possible and, where possible, to reduce costs through better case-management and the like. However, it cannot be taken for granted that simply legislating in this way to create these new structures will achieve that objective. Therefore, the amendment is intended to create a framework within which the whole structure can be kept under comprehensive and regular review. I beg to move.
My Lords, I am very relieved that the noble Lord, Lord Beecham, does not oppose the government proposal for a single family court. I agree to a considerable extent with what he said.
To take Amendment 68A, the single family court will implode the family proceedings court at the magistrates' level. The family proceedings court already takes a considerable burden of difficult family cases, both care cases and private law cases. The magistrates find that sometimes in the family proceedings court they have to sit for several consecutive days. In private law cases, families at odds with each other find it almost impossible to have their case dealt with to their satisfaction at one hearing. As a former president of the Family Division, my experience was that cases returned with monotonous regularity. I would be astonished if they returned with any less regularity to the magistrates' court, as they deal with a lot of quite difficult private law cases.
Bearing in mind that legal aid will be removed from almost all private law disputes, other than domestic violence and one or two small matters, very much longer work will go on in the family proceedings court. As I understand it-certainly in the past and to some extent it may happen now-those who wish to sit in the family proceedings court are expected to carry their full share of the criminal courts, sitting in the criminal part of the magistrates' court. That means they are not necessarily available to sit on repeat hearings. One of the really important aspects of family proceedings is the continuity of the court. The judges at every level-district, circuit and High Court-try as hard as they can to keep the same judge if possible. Under the present system, where magistrates who are particularly good at family work find themselves having to sit in the criminal court, they might not be available for that necessary continuity. I am not suggesting that family proceedings magistrates should sit every day of the year, but in proportion to how they sit in the criminal court and family court, I would like very much greater flexibility. Where appropriate and when experienced, they should be able to spend their time sitting in the family proceedings court. The lack of legal aid will be a significant factor in the magistrates' family proceedings court, as I expect it will be in the district court.
I also very much support Amendment 68B. It would be very important to have a review of the provisions of the single family court, and I have no doubt that a review of the single county court will also be sensible. I am particularly concerned about the lack of legal aid at the single family court, with the impact on the family court at district, circuit and High Court judge levels. There will not only be problems with access to justice; perhaps more serious is the impact of longer cases. As I said at Second Reading, where litigants in person have lawyers, they can usually get the case tried quite quickly. If they do not have lawyers, it is impossible for a couple to settle their grievances-if they could have settled, they would not have come to court. The judge has great difficulty in getting them to settle and basically has to sit and hear the case. Therefore cases that would settle in half an hour are going to be heard for one or two days and sometimes longer. That is going to create an additional delay at several courts, particularly at the district judges' court.
It will have an impact in those courts where care cases are heard where, according to Norgrove and supported by the Government, they should begin and finish in six months. It is important that the effect of these various proposals should be reviewed by the Government, particularly on the legal aid aspect, in the next year to 18 months. Thereafter, however, looking at Amendment 68C, I wonder whether an annual basis might not be excessive, It is excessive in the sense that it will cost money and I would prefer to have it less frequently-every two or three years-but it should be in depth and action then taken by the Government of the day to improve what that report has said. I would not think that an annual basis was an entirely sensible proposal, but in principle I support these amendments.
My Lords, I rise to support this group of amendments. Essentially, they are about monitoring the outcome of what has been the largest overhaul of the courts system for a long time. Many courts have closed and some have opened. Last Thursday, I went to the opening of the new Westminster Magistrates' Court by the Lord Chancellor. It is a magnificent building and I hope that it will be a centrepiece of London justice for the next 100 years. While this is set for London, over the whole country-including London-there have been many closures of smaller courts, which mean we are moving away from the principle of local justice which is administered locally. The reasons for these sweeping changes should be monitored and that is the main purpose of this group of amendments.
I will now move to the idea of a single family court with a single point of entry. I understand that this change is generally welcomed by all those involved in the family court system. I will repeat a point that has been made before, that lay magistrates are looking for reassurance that they will continue to play an important part in the family proceedings courts. When I have raised this issue before, that reassurance has always been forthcoming from Ministers. I repeat that request today, although it will be in the details of the proceedings of the courts themselves-which I understand will be a separate Bill at a later stage-where the lay magistrates' concerns will be most likely to get their reassurance.
Amendment 68A states:
"There shall be no restriction on the number of days that a family magistrate may sit in the family proceedings court".
That is to meet the recommendation of the Norgrove report, as my noble friend Lord Beecham said. As the noble and learned Baroness, Lady Butler-Sloss, said, the main purpose is to increase flexibility and case continuity for repeat hearings. It is my understanding that it is for the Lord Chief Justice and Lord Chancellor to determine both the maximum and minimum amount of sittings by magistrates, and it is not a matter for primary legislation. I would argue that it is important that lay magistrates maintain their activities outside court and are not professionalised through excessive sitting. It is right that the route to appointment as a lay family magistrate is through the adult criminal lay Bench, as it is today. That should continue. I acknowledge that it is a conundrum to meet the needs which the noble and learned Baroness, Lady Butler-Sloss said, while at the same time maintaining a lay Bench which is genuinely lay.
There is an answer. These matters could be determined locally by bench chairmen and I understand that experienced family magistrates can choose to give up their adult criminal work, with the approval of their bench chairman. There are ways round these problems, which can be administered locally. The purpose of this group of amendments is to look at the many changes and be reassured that the Government want to review them, write reports about them and keep an open mind about what they are introducing. I wholly support this aim.
My Lords, I am very grateful for the opportunity to discuss these proposals. I should put on the record that Manchester United is in the borough of Trafford. It is very dangerous for people such as the noble Lord, Lord Beecham, to wander west of the Pennines with football knowledge: they are just not up to it.
The noble Lord will acknowledge, and I am pleased to say, that sometimes it is very dangerous for Manchester United to venture to the north-east.
I agree. The noble Lord kindly gave me a plank on which to walk to firmer ground. His points about the operations of the Court of Protection are wider than the scope of this Bill and it would be better if I write to him and put a copy in the Library of the House. This has been mainly a debate about the fundamental overhaul of the civil and family court system in England and Wales, which has the aim of providing an effective, proportionate and efficient system for resolving disputes.
With these principles in mind, Clause 17, as has been said, establishes a new single county court and a single family court for England and Wales. In January 2008, the Judicial Executive Board commissioned the former Lord Justice of Appeal, Sir Henry Brooke, to conduct an inquiry into civil court unification, and the noble Lord, Lord Beecham, quoted from Sir Henry's report. In that report, Sir Henry recommended that there should be consideration on the creation of a single national court.
Our proposals mean that a single court will provide a more efficient civil justice system where litigants can achieve a more efficient, proportionate and speedier resolution to their disputes. Access to justice will be increased as the single county court will enable Her Majesty's Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in a cost-effective way. Court users in general will see a more responsive and consistent service through more effective use of information and communication technology, and the ability to centralise and standardise back office functions.
The noble Lord, Lord Beecham, mentioned the record of the business centre in Salford, which processes 1,800 claims every day. It does that within two to three days of their receipt. Some concerns have been raised but they are mainly as a result of bedding in a new service. The service is on a par with that previously experienced in the individual county courts.
Turning to the new family court, members of the public bringing family proceedings before the court rarely do so as a matter of choice. In many cases it is preferable for the parties and any children involved to be helped to resolve their differences outside the court arena. However, there are cases that are properly and appropriately brought to court for a judicial decision. The Government consider it is vital that individuals, many of whom are under stress when bringing family proceedings to court, are confronted with a system that is easier to use and access, and which provides swifter resolution of issues than is possible under the current court structure.
As your Lordships will be aware, the proposal to establish a single family court came from the independent review of the family justice system by a panel chaired by David Norgrove. A single family court will provide clarity and simplicity for the court user. It will increase accessibility to the court and reduce confusion. In particular, it will help those involved in family proceedings without representation who currently may be unsure whether their particular application should be made to a magistrates' court or a county court and, if so, which category of county court.
The creation of a single family court will allow cases to be allocated appropriately by a judicial gatekeeper on the issue of proceedings, as all judges and magistrates hearing family matters will be judges of the family court. That flexibility will benefit the court user as the early identification of the appropriate level of judiciary will minimise delay. As with the new county court, the creation of the single family court will also lead to greater efficiencies in the use of administrative and judicial resources.
Amendment 68A seeks to lift the restrictions on the number of days magistrates will be able to sit in the new family court. I note the points made by the noble Lords, Lord Beecham and Lord Ponsonby, and the noble and learned Baroness, Lady Butler-Sloss. First, perhaps I may give the noble Lord, Lord Ponsonby, the reassurance he seeks. I support the magistrates in the family proceedings court and elsewhere. I can assure your Lordships that there is no intention of using the creation of the single family court as a way of diminishing the role of magistrates in family proceedings. The purpose of these provisions is to create a more efficient and flexible system that is better able to respond to fluctuations in demand. The Government recognise the crucial and invaluable role that magistrates have to play in the family justice system and have no wish to undermine this.
Among the proposals by the Family Justice Review, judges and magistrates should be able to and encouraged to specialise in family matters. As part of this, the review recommended that the Judicial Office should revisit the restriction on magistrate sitting days. The Government accepted this recommendation and in our response to the review stated that,
"those willing to sit extra days to accommodate family cases should not be discouraged from doing so due to an arbitrary threshold".
In considering this, I will take back the points made by the noble Lord, Lord Ponsonby. The Government will work with the Judicial Office to look at the feasibility of making such changes. I am happy to keep the noble Lords informed of progress in this area. With that assurance, I hope that the noble Lord will feel happy to withdraw that amendment.
Amendment 68B would require the Secretary of State to conduct a review of the single county court and single family court, and to publish a report to Parliament within 18 months of commencement of these provisions. As the noble Lord, Lord Beecham, will be aware, the previous Administration introduced a system of post-legislative reviews of all government legislation. This is a valuable process and one that this Government have been happy to continue. Such reviews are conducted some three to five years after Royal Assent. Given this standing arrangement, I am not persuaded that we need to write a review mechanism into the Bill.
I can assure noble Lords that, in line with the standing arrangements for post-legislative scrutiny, we will be conducting a review of the new single county court and family court. Indeed, we included a commitment to this effect in the impact assessments which we have published alongside the Bill. These provide for a review to be carried out within five years. This timeframe will allow the new county and family courts to bed down and so enable the full benefits to be fully and properly evaluated. I put it to noble Lords that a review that starts just 12 months after commencement will be too soon to enable a proper evaluation to take place and to draw meaningful comparisons with the old arrangements. The longer timeframe we have in mind will enable appropriate statistical evidence to be compiled and the views of court users and others to be obtained based on a realistic period of operation under the new arrangements.
I am similarly not persuaded of the case for Amendment 68C. Under Section 1 of the Courts Act 2003, the Lord Chancellor is already under a general statutory duty to ensure that there is an efficient and effective system to support the carrying on of business in the courts and to report annually to Parliament on the discharge of this duty. Moreover, both Her Majesty's Courts and Tribunals Service and the Office of the Public Guardian publish annual reports. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, imposing a requirement for an annual review would be excessive and unnecessary. I would be interested to know whether the noble Lord has put a cost on such annual reviews.
I was very pleased the noble Lord, Lord Beecham, said that he would not press his opposition to Clause 17 standing part of the Bill, and that there is general support around the House for these reforms. Now is the time to let them go forward and bed in. I take the point made about the magistracy, which I strongly endorse. In those circumstances, I hope that the noble Lord will be able to withdraw his amendment.
I am grateful to the Minister for his reply. In particular I welcome his response to limits on the time magistrates might sit in the family court. I also take the point made by the noble and learned Baroness, Lady Butler-Sloss, that an annual review, as called for in the amendment, is perhaps too frequent. However, I do not agree that it is simply good enough to rely on the present system with the Lord Chancellor reporting and then the other courts reporting separately. We need a comprehensive periodic review-I accept that annually may be too frequent-to look at how the whole system is working particularly in the light of other legislative changes, notably the Legal Aid Act, which is clearly going to impinge very substantially on the way the courts work. I do not think a review after five years, or even three, is adequate to assess how things are going, given the scale of the changes and the potential implications for parties and indeed the system itself. However, a periodic review perhaps less frequently than one year but more frequently than currently occurs across the whole system is required so that we can look at the effect of change-these statutory changes and others outside the province of the legislature-on society itself and whether it is adequately dealt with by the different parts of what is, after all, supposed to be effectively a single system which ought not to be too difficult for people to navigate.
In the circumstances, I will not press these amendments today but I am likely to return at least to the question of a comprehensive review, albeit perhaps on a different time basis, when we come to Report. At this stage, I beg leave to withdraw.
Amendment 68A withdrawn.
Clause 17 agreed.
Amendments 68B and 68C not moved.
Moved by Lord Beecham
68D: After Clause 17, insert the following new Clause-
"Provision of information service for court users
An adequate information service must be provided for court users at each county court, which may be provided in partnership with a voluntary organisation."
My Lords, this is a relatively simple amendment. It arises from discussions with citizens advice bureaux nationally which have pointed out that the practice of there being reception staff at county courts has lapsed in many places. I understand that in many courts there is staffing available for only two hours a day. In some courts there is no staffing at all now. Given the changes in the legal aid and advice system increasingly people are going to be finding their own way, unsupported, to the courts and will find little or no help or advice available. The purpose of this amendment is simply to endeavour to require that there should be an information service accessible to people at the courts, not necessarily provided by the courts. Citizens advice bureaux and possibly other agencies might well be interested in undertaking this responsibility It is surely important, particularly for those who find the whole process of litigation difficult, as many do, to have accessible advice at the point where it is most needed-that is, at the court door, as it were. I hope that the Government will look at ways in which this might be achieved, particularly involving the voluntary sector. It would ultimately assist the efficiency of the courts because otherwise, I suspect, we are going to get increasing problems, as I have already indicated, from the number of litigants in person. At least if litigants in person can receive some advice at the outset, it might ultimately repay itself in financial and other terms quite profoundly with a reduced impact on more expensive court time, which is better deployed in determining cases. I beg to move.
My Lords, I hope that what the noble Lord, Lord Beecham, is proposing here is given most careful consideration. In order to obtain what we all want-access to justice for the citizen-information is critical. In Access to Justice, for which I was responsible many years ago, I hoped that we would one day reach the situation where the courts' role changed from what it had been in the past. In the past, its purpose was to respond to the litigant's activities and not to be proactive. I urged that the courts should become proactive and the citizen who come to the court shall receive not only the judgment, which sometimes they would be looking for, but also guidance as to the most economic and efficient way of resolving their dispute. Information provided as envisaged by the noble Lord, Lord Beecham, could play a critical role in this respect. Commendably, following Access to Justice, some courts provided very good services of this nature. It is very easy, when one is forced to make the economies that the Lord Chancellor is forced to make, perhaps not immediately recognise that although the service is a modest one it pays for itself over and again. It is important to the possible litigant seeking from the court general guidance on the resolution of their dispute. I hope what the noble Lord, Lord Beecham, has proposed will be taken away and considered very carefully and sympathetically.
My Lords, the proposal of the noble Lord, Lord Beecham, is very much in line with what we are trying to do but I cannot believe that it is necessary to have a statutory duty. We went through some of this in the LASPO Bill. I think that sometimes noble Lords do not accept just how much these days people get their information via the telephone and the internet, and from well-prepared, well-produced literature. There is a role for the voluntary sector and certainly we will be willing to explore with it the role it can play. However, surveys we have carried out show that only a small minority of attendees at court counters were there to seek information. Overwhelmingly, people get their information through well-produced literature, the telephone and the internet. Part of the thrust of the reforms we are carrying through at the MoJ is to make sure that our online services are as full as possible with information and guidance to steer people through the processes.
Yes, it is quite true that places such as the CABs can play an important part in being the first point of contact to help people to go online and make the right phone call. Certainly, as I said, we would be willing to talk to third sector advice agencies. Indeed, the MoJ and the court services already provide some grants to those organisations for that purpose. I recognise the importance of ensuring that information is widely available without requiring citizens to travel to their local hearing centre to find it. Her Majesty's Courts and Tribunals Service already provides a wide variety of information to users and does so through a number of different channels, including websites, telephone and at court counters. In doing so, we already routinely work with third sector organisations. To keep pace with how citizens access information, and in keeping with other public services, we believe it is more appropriate to focus resources on providing information through online and telephone services so we can better serve the population as a whole to gain access to information from anywhere at any time. Equally, when people attend court, they will continue to have the information that they need to use our services effectively. With the assurance that county court users will continue, as now, to be provided with appropriate information, I hope that the noble Lord will be willing to withdraw his amendment.
It is certainly possible to underestimate the degree to which people access online services, but it is equally possible to overestimate the willingness and capacity of people to use such services or, for that matter, the adequacy of the services themselves. In endeavouring to prepare for today's debate, for example, I went on to the MoJ website to track down documents referred to by the Minister, Mr Djanogly. I simply could not do that. It might well have been me, but it also might have been the MoJ. I cannot believe that it is universally the case that people, particularly people in sometimes difficult and distressing circumstances, which is why they are going to court in the first place, will necessarily be able to find information easily.
I know that the Minister is well intentioned in this, but it would be helpful if he could indicate whether, by the time we get to Report-after all, with the Summer Recess, it will be some months before we do that-he would endeavour to have these discussions with the third sector and indicate an outcome. At that point, it may not be necessary to press the matter further, but I would like something a little more concrete than good will before abandoning the proposal, for which I am very glad to have received the support of the noble and learned Lord, Lord Woolf.
The noble Lord said that some in the voluntary sector had said to him that they had ideas. Short of committing money, I am very willing to talk to them about this issue, and we can look at it and report back at Report-perhaps not with an amendment from him. My good will is certainly there, but I believe that with understandable websites, the telephone and the use of the voluntary sector we can meet his concerns.
I am grateful for that assurance. I know that the Minister is sympathetic to the objective, if not necessarily the means. I hope that he can have some discussions with the sector and resolve matters, but I shall reserve my position until then. I beg leave to withdraw the amendment.
Amendment 68D withdrawn.
Schedule 9 : Single county court in England and Wales
Moved by Lord McNally
69: Schedule 9, page 99, line 10, leave out "chairmen of employment tribunals" and insert "Employment Judges"
My Lords, wearing another hat, I am a member of the public business committee that guides public business through both Houses. That business committee usually takes the strongest possible exception to any government department in any Bill where a large number of government drafting amendments appear on the order paper. So I am a little bit embarrassed to be moving this amendment, although I am assured by those who advise me that the amendments are entirely necessarily.
The amendments cover a number of pages in the Marshalled List, but they are technical in nature. They include a number of minor or consequential amendments to take account of the creation of the single county court and single family court. With the creation of the single county court, the 170 existing county courts will cease to exist as separate courts or jurisdictions but will remain as hearing centres with court offices attached to them. Perhaps I can use this opportunity to answer a point made in an earlier debate. No, there is no secret hit list behind this legislation in creating the two single courts. But what is left are numerous statutory references to "a county court", which now need throughout the legislation to be amended to "the county court."
However, some provisions require more than merely substituting one word for another. In some cases, the relevant provisions extend to other jurisdictions, most notably Scotland and Northern Ireland. Accordingly, although still consequential, some amendments require further work to ensure that they have effect only in England and Wales. In other cases, when certain proceedings are required to be undertaken in a county court in a particular district, it has been necessary to amend those provisions to reflect the fact that there will now be only one county court with a general jurisdiction. In future and where necessary, specialist jurisdiction will be conferred on particular hearing centres by secondary legislation.
Amendments 71 and 72 clarify the rules designed to prevent any conflict of interest by part-time judges in the county court. The amendments provide that a part-time judge in the county court may not act as a judge in relation to any proceedings in the court in which he or she, or anyone with whom the judge is in practice, is directly or indirectly engaged as a legal representative. The amendments are needed in light of the expanding number of business entities within which solicitors may now work following the enactment of the Legal Services Act 2007. Amendments 80 to 82 introduce parallel provisions for the family court. As with the single county court, the amendments to the family court provisions are also largely minor and consequential. These amendments take account of the creation of a single family court from the existing three levels of court which currently deal with family proceedings in England and Wales.
As I am sure your Lordships will appreciate, the process of creating a new court necessitates a plethora of consequential amendments to various enactments. The majority of the amendments in this group are intended to ensure that the family court has the same jurisdiction as the courts that currently deal with family proceedings. This process involves, among other things, substituting numerous references across many different Acts to the "magistrates' court" for the "family court".
I should draw to the Committee's attention one particular amendment relating to the family court. Amendment 83 removes the provision in new Section 31D of the Matrimonial and Family Proceedings Act 1984, which, by applying Part 1 of Schedule 1 to the Constitutional Reform Act 2005, gave the Lord Chancellor the power to require the Lord Chief Justice to make rules on the composition of the family court and the distribution of business among the judges within the family court. On further consideration, we have accepted that this power is unnecessary as the Lord Chief Justice will, regardless of this power, need to make rules to ensure the practical and efficient implementation of the single family court. As a result, we accept that there will be no need for any direction from the Lord Chancellor for him to do so.
There is also one final set of amendments in this group to which I should draw the Committee's attention. Amendments 69, 70, 78, 79, 134, 136, 141, 142, 143, 144 and 146 all make consequential amendments to various enactments as a consequence of the renaming of chairmen of employment tribunals as employment judges. These amendments simply ensure that the relevant legislation reflect the new nomenclature. As I indicated in my opening remarks, I appreciate that there are quite a few pages of amendments in this group. But as I have tried to explain, they are overwhelmingly of a technical nature. I would, of course, be happy to explain particular amendments in further detail if necessary, but for now I would simply move Amendment 69.
My Lords, I am grateful to the Minister for giving us a quick guide through this jungle of amendments, about which I have nothing to say except that I note that the inflation of nomenclature is even greater than RPI: everybody now ends up as a judge, which I am sure is a great consolation to the legal profession. Clearly, these are technical and useful amendments and they should certainly stand.
Amendment 69 agreed.
Amendments 70 to 77
Moved by Lord McNally
70: Schedule 9, page 99, line 11, after "Wales" insert "or for Scotland"
71: Schedule 9, page 100, line 1, leave out from "(1)" to end of line 3 and insert "(officer of a county court and officer's firm not to be engaged as representative in any proceedings in that court, subject to exception in subsection (4) for deputy district judges)-
(a) for the words from the beginning to "be" substitute-
"A fee-paid part-time judge of the county court may not act as a judge of the court in relation to any proceedings in the court in which-
(a) the judge,
(b) a partner or employer of the judge,
(c) a body of which the judge is a member or officer, or
(d) a body of whose governing body the judge is a member, is", and
(b) omit "in any proceedings in that court"."
72: Schedule 9, page 100, line 5, leave out sub-paragraph (4) and insert-
"(4) Omit subsection (4) (provision about deputy district judges which is incorporated in the amended subsection (1))."
73: Schedule 9, page 106, line 4, at end insert-
"( ) In section 125(1) (execution of warrants) for "a court" substitute "the court"."
74: Schedule 9, page 110, line 1, at end insert ", and
(b) for "county court rules" substitute "rules of court"."
75: Schedule 9, page 114, line 17, at end insert-
"Part 2AFurther amendmentsAmendment of references to "a county court"
51A (1) In the provisions listed in sub-paragraph (2) (but subject to any specific amendments made by or under this Act)-
(a) for "A county court", in each place, substitute "The county court", and
(b) for "a county court", in each place, substitute "the county court".
(2) The provisions are-
Access to Health Records Act 1990: section 8(5),
Access to Justice Act 1999: sections 17, 17A, 21 and 54 to 57,
Access to Medical Records Act 1988: section 8(2),
Access to Neighbouring Land Act 1992: section 8(3),
Administration of Justice (Miscellaneous Provisions) Act 1933: section 7(2),
Administration of Justice Act 1960: sections 12 and 13,
Administration of Justice Act 1970: section 11(b) in the words before sub-paragraph (i), and section 41(3),
Administration of Justice Act 1977: section 23(4)(a),
Administration of Justice Act 1982: section 38,
Administration of Justice Act 1985: section 53(2)(c),
Anti-social Behaviour Act 2003: sections 13 and 26A to 28,
Charging Orders Act 1979: sections 1(1), (2)(c) and (d) and (6), 3(4A)(a) and 6(2),
Charities Act 1992: section 58(1),
Civil Jurisdiction and Judgments Act 1982: section 18(4A)(a),
Commonhold and Leasehold Reform Act 2002: sections 66(1) and 107(1),
Commons Act 2006: sections 34(5) and 46(7)(a),
Companies Act 2006: section 1183,
Communications Act 2003: section 124Q(7)(a),
Compensation Act 2006: section 8(2),
Crime and Disorder Act 1998: sections 1B(1) and 10,
Criminal Justice Act 2003: section 329(8)(c),
Data Protection Act 1998: section 55D(2)(a),
Education Act 1996: section 336(2)(g),
Education and Skills Act 2008: sections 56(5), 57(2), 58(4)(b), 59(4) and 65(3),
Electricity Act 1989: sections 39B(4)(a) and 44A(6)(b)(i),
Employment Rights Act 1996: sections 110(6)(a), 194(4) and 195(4),
Employment Tribunals Act 1996: sections 7(3)(e)(i), 13(1C), 15(1) and 19A,
Environmental Protection Act 1990: section 78P(8),
Equality Act 2006: sections 21(7)(b), 22(6), 24 and 32(9)(b), and paragraphs 11 and 12(2) of Schedule 2,
Finance Act 2003: paragraph 5(1)(a) of Schedule 12, and the first "a county court" in paragraph 5(3)(a) of that Schedule,
Financial Services and Markets Act 2000: paragraphs 16(a) and 16D(a) of Schedule 17,
Gas Act 1986: sections 15A(6)(b), 27A(9)(b) and 33AB(4)(a),
Health and Social Care (Community Health and Standards) Act 2003: section 155(7),
Highways Act 1980: sections 79(8) and (13) and 308,
Horserace Betting and Olympic Lottery Act 2004: section 9(6),
Housing Act 1980: section 86(1),
Housing Act 1985: sections 82A(2), 110(1), 181(1) and 272(5), and paragraph 6(5) of Schedule 18,
Housing Act 1996: sections 95, 138(1), 153E(6), 154(1), 155(6), 157(1) and 203(5),
Housing Act 2004: sections 214(1) and 215(2A), and paragraphs 5(3)(a) and 13 of Schedule 13,
Immigration and Asylum Act 1999: section 43(2)(a),
Immigration, Asylum and Nationality Act 2006: section 17(6)(a),
Industrial and Provident Societies Act 1965: section 60(8)(a),
Insolvency Act 1986: sections 196(a), 373(2), 375 and 429(1),
Land Registration Act 2002: sections 75(4), 76(5) and 132(3)(a),
Landlord and Tenant (Covenants) Act 1995: sections 8(4) and 10(4),
Landlord and Tenant (War Damage) Act 1939: section 23(1),
Landlord and Tenant Act 1954: section 63(2) and (9),
Landlord and Tenant Act 1985: section 20C(2), and paragraph 8(2) of the Schedule,
Landlord and Tenant Act 1987: sections 52(1) and (3) and 60(1), and paragraphs 4(3) and 9(3) of Schedule 1, and section 52(4) until its repeal by the Courts and Legal Services Act 1990 is fully in force,
Learning and Skills Act 2000: section 145(5),
Leasehold Reform, Housing and Urban Development Act 1993: sections 90, 93(3) and 101(1), paragraph 4(3) of Schedule 8 and paragraph 4 of Schedule 14,
Legal Aid, Sentencing and Punishment of Offenders Act 2012: sections 24(3)(b) and 36(5), paragraph 5 of Part 3 of Schedule 1 and paragraph 2(3) of Schedule 2,
Legal Services Act 2007: section 141(7),
Local Government Act 1972: section 146(3),
Local Government Act 2000: section 77(6)(e),
Local Government Finance Act 1992: paragraph 11(4) of Schedule 4,
Local Land Charges Act 1975: section 10(8),
Localism Act 2011: section 159(5),
London Building Acts (Amendment) Act 1939 (c. xcvii): sections 103 and 143, and entry (xxxiv) in the table in section 148(2),
London County Council (General Powers) Act 1955 (c. xxix): section 7(4),
Magistrates' Courts Act 1980: sections 87(1) and 111A(3)(a),
Mental Health Act 1983: section 31,
Mines and Quarries (Tips) Act 1969: section 28,
National Health Service Act 2006: sections 90(5), 94(3)(h), 105(5), 109(3)(h), 122(5) and 139(8), and paragraph 3(3)(j) of Schedule 12,
National Health Service (Wales) Act 2006: sections 48(5), 52(3)(h), 62(5), 66(3)(h) and 97(8), and paragraph 3(3)(j) of Schedule 7,
National Minimum Wage Act 1998: sections 19E(a), 38(2) and 39(2),
Patents Act 1977: sections 41(9), 61(7)(a), 93(a) and 107(2),
Pension Schemes Act 1993: sections 53(1B)(a), 115(6)(a), 150(8)(a) and 151(5)(a),
Pensions Act 1995: section 10(8A)(a),
Pensions Act 2004: sections 103(9)(a), 217(2)(a) and 218(5)(a),
Pensions Act 2008: section 42(2),
Planning Act 2008: section 171(4), and paragraph 24 of Schedule 12,
Policing and Crime Act 2009: section 49(1), and paragraph 1(9) of Schedule 5A,
Protection from Harassment Act 1997: section 3A(2),
Rent (Agriculture) Act 1976: section 26,
Rent Act 1977: sections 96(3), 132(6) and 141,
Representation of the People Act 1983: sections 78(4), 86(1)(c) and 167(1), and rule 56(1), (4) and (5)(a) of Schedule 1, with a view to the inserted references to the county court including (as in other places in that Act) a county court in Northern Ireland,
Representation of the People Act 1983: section 167(3), and paragraph 9 of Schedule 4,
Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951: section 2(1),
Senior Courts Act 1981: section 29(4),
Social Security (Recovery of Benefits) Act 1997: section 7(4),
Social Security Act 1989: paragraph 9 of Schedule 5,
Social Security Administration Act 1992: sections 71ZE(1) and 126(3)(a),
Social Security Contributions and Benefits Act 1992: section 12(7),
Solicitors Act 1974: sections 61(6), 68(2), 69(3) and 74(3),
Tribunals, Courts and Enforcement Act 2007: sections 27(1)(a) and 78(3), section 92(1) (in the inserted section 15D(3)), section 93(2) (in the inserted section 1(6)), section 93(3) (in the inserted section 3(4A)(a)), sections 93(6), 95(1), 104(2), 115 to 118, 119(1)(b), 122(2) and 123(1), paragraph 12(2)(b) of Schedule 5, paragraphs 3(1), 60(8) and 66(4) of Schedule 12, paragraphs 77 and 79(2)(a) of Schedule 13 (in the quoted or inserted text), paragraphs 2(2), 5, 7, 10, 18 and 21 of Schedule 15 (in the inserted text) and paragraph 3(2) of Schedule 16 (in the inserted section 429(1)),
Trusts of Land and Appointment of Trustees Act 1996: section 23(3),
Violent Crime Reduction Act 2006: section 4(1),
Water Industry Act 1991: sections 30A(5), 51B(5) and 150A(6), and
Welfare Reform Act 2012: section 105(1) (in the inserted section 71ZE(1)).
Amendments of other references
51B In section 7(1) of the Access to Neighbouring Land Act 1992 for "the county courts" substitute "the county court".
51C In section 40 of the Administration of Justice Act 1956 for "a county court", and for "that county court", substitute "the county court".
51D In section 26 of the Administration of Justice 1964 (Inner and Middle Temples in City of London for certain purposes including the law relating to county courts) omit "county courts,".
51E In section 96(1) of the Agricultural Holdings Act 1986 omit the definition of "county court".
51F In section 18(5) of the Agricultural Marketing Act 1958 omit the words from "within the district" to "may be brought".
51G In section 5 of the Agriculture (Miscellaneous Provisions) Act 1954-
(a) in subsections (2) and (3) for "county court rules" substitute "rules of court", and
(b) omit subsection (4) (powers of district judge).
51H In section 6 of the Allotments Act 1922 for "the judge of the county court having jurisdiction in the place where the land is situated", and for "a county court", substitute "the county court".
51I (1) In section 82(1) of the Arbitration Act 1996, in the definition of "legal proceedings", after "civil proceedings" insert "in England and Wales in the High Court or the county court or in Northern Ireland".
(2) In section 105 of that Act-
(a) in subsection (1) after ""the court"" insert "in relation to England and Wales means the High Court or the county court and in relation to Northern Ireland",
(b) in subsection (2) before paragraph (a) insert-
"(za) allocating proceedings under this Act in England and Wales to the High Court or the county court;",
(c) in subsection (2)(a) after "this Act" insert "in Northern Ireland",
(d) in subsection (2)(b) after "or in" insert "the county court or (as the case may be)",
(e) in the first sentence in subsection (3) after "a county court" insert "in Northern Ireland", and
(f) in the second sentence in subsection (3) omit "England and Wales or, as the case may be,".
51J In section 22(6) of the Architects Act 1997 (appeals) after "appeal" insert "in England and Wales to the county court or, in Northern Ireland,".
51K In section 17(6) of the Audit Commission Act 1998 for "the county courts" substitute "the county court".
51L In section 5(1) of the Caravan Sites Act 1968 (meaning of "the court") omit the words from "and any powers" to the end.
51M In the Chancel Repairs Act 1932-
(a) in section 3(1)-
(i) omit "for the district in which the chancel is situate", and
(ii) for "a county court" substitute "the county court",
(b) in section 3(3)-
(i) for "a judge of county courts" substitute "the county court", and
(ii) for "the judge" substitute "the court", and
(c) in section 4(1) for "county court rules" substitute "rules of court".
51N In sections 10(7), 29(4) and 29A(1) of the Chiropractors Act 1994-
(a) after "appeal" insert "in England and Wales to the county court or in Northern Ireland", and
(b) before "the sheriff" insert "to".
51O In section 18(2)(b) of the Civil Jurisdiction and Judgments Act 1982 for "or", in the second place, substitute "in the High Court or the county court or in".
51P In the Civil Procedure Act 1997-
(a) in sections 1(1)(c) and 2(2)(e) and (f) for "county courts" substitute "the county court", and
(b) in Schedule 1 (civil procedure rules)-
(i) in paragraph 3(1)(b) for "between county courts" substitute "within the county court", and
(ii) in paragraph 3(2)(a)(ii) for "by another county court" substitute "elsewhere within the county court".
51Q In section 25(5)(c) of the Commissioners for Revenue and Customs Act 2005, in the definition of "legal proceedings", after "civil proceedings" insert "in England and Wales in the county court or in Northern Ireland".
51R In paragraph 11 of Schedule 11 to the Commonhold and Leasehold Reform Act 2002 for "a county court", and for "such a court", substitute "the county court".
51S In section 41(1) of the Commons Act 2006 omit "in whose area the land is situated".
51T In section 2(7) of the Contracts (Rights of Third Parties) Act 1999 after "exercisable" insert "in England and Wales by both the High Court and the county court and in Northern Ireland".
51U In sections 115(1), 205(1) and 232(1) of the Copyright, Designs and Patents Act 1988 for ",Wales and" substitute "and Wales the county court and in".
51V In section 8(4) of the Coroners and Justice Act 2009 for "county courts" substitute "county court".
51W In section 30 of the Courts Act 1971 for "county courts" substitute "the county court".
51X In section 1B(5) of the Crime and Disorder Act 1998 for "which made an order under this section for it" substitute "for an order made under this section".
51Y In section 10(1) of the Criminal Law Act 1977 for "by any" substitute "the".
51Z In section 15(1) of the Data Protection Act 1998 after "exercisable" insert "in England and Wales by the High Court or the county court or, in Northern Ireland,".
51AA In section 5 of the Debtors Act 1869-
(a) in paragraph (a) of proviso (1) for "or his deputy" substitute "of the court",
(b) for "any county court" substitute "the county court", and
(c) for "other than a" substitute "other than the".
51AB In the Deeds of Arrangement Act 1914-
(a) in section 10(1) for the words after "copy of the deed to the" substitute "county court.",
(b) in section 10(2) omit "the registrar of", and
(c) in section 16 for "a county court" substitute "the county court".
51AC In section 8 of the Disused Burial Grounds (Amendment) Act 1981-
(a) omit "in whose district the land is situated who", and
(b) omit the words after "costs of the application".
51AD In the Enterprise Act 2002-
(a) in section 16(6) after "High Court" insert "or the county court",
(b) in section 215(5)(a) omit "England and Wales or",
(c) in section 215(5) before paragraph (a) insert-
"(za) the High Court or the county court if the person against whom the order is sought carries on business or has a place of business in England and Wales;", and
(d) in paragraph 25(a) of Schedule 4 for "a county court in England and Wales or" substitute "the county court in England and Wales or the High Court or a county court in".
51AE In the Estate Agents Act 1979-
(a) in the definition of "court" in section 11A(4) omit "England and Wales and" and before paragraph (a) insert-
"(za) in England and Wales, the High Court or the county court;", and
(b) in paragraph 6(1) of Schedule 4 after "appeal" insert "in England and Wales to the county court or, in Northern Ireland,".
51AF In section 133(8)(a) of the Financial Services and Markets Act 2000 before "as if" insert "in England and Wales, as if it were an order of the county court or, in Northern Ireland,".
51AG (1) In section 22 of the Friendly Societies Act 1974 after subsection (2) insert-
"(2A) In the application of subsection (2) to England and Wales, for the words "for the district in which the member resides" there shall be substituted "if the member resides in England and Wales".
(2) In section 80(2)(b) of that Act after "brought" insert "in England and Wales in the county court or, in Northern Ireland,".
(3) In section 93(3) of that Act-
(a) for the words from "make an application-" to the end of paragraph (a) substitute "make an application to the county court in England and Wales if the chief or any other place of business of that society or branch is situated in England and Wales or may make an application-", and
(b) for "such application" substitute "application under this subsection".
51AH (1) In section 82(4) of the Friendly Societies Act 1992 after "brought" insert "in England and Wales in the county court or, in Northern Ireland,".
(2) In section 119(1) of that Act in the definition of "the court" for "Wales or" substitute "Wales, the county court;
(aa) in the case of a body whose registered office is situated in".
51AI (1) In section 48 of the Government Annuities Act 1929 after subsection (2) insert-
"(2A) For the purposes of this section, England and Wales is to be treated as the district of the county court in England and Wales."
(2) In section 61(1) of that Act after "a county court" insert "in Northern Ireland or the county court in England and Wales".
51AJ Omit section 59(4) of the Highways Act 1980 and, in consequence, omit paragraph 8(2) of Schedule 3 to the Administration of Justice Act 1982.
51AK In paragraph 6(2) of Schedule 18 to the Housing Act 1985 for "a county court judge", and for "the county court judge", substitute "a judge of the county court".
51AL In paragraph 13 of Schedule 13 to the Housing Act 2004 for "such a" substitute "that".
51AM In the Immigration and Asylum Act 1999-
(a) in section 25(5)(a) after "granted" insert "in England and Wales by the county court or in Northern Ireland",
(b) in section 43(3)(a) after "a county court" insert "in Northern Ireland, or the county court in England and Wales,", and
(c) in sections 89(7), 92(1) and 112(4) after "a county court" insert "in Northern Ireland or the county court in England and Wales".
51AN In section 42(3)(b) of the Industrial and Provident Societies Act 1965 for "that county court or" substitute "the county court or that".
51AO In section 25(1) of the Inheritance (Provision for Family and Dependants) Act 1975 in the definition of "the court"-
(a) for "a county" in both places substitute "the county", and
(b) for "22 of this Act" substitute "25 of the County Courts Act 1984".
51AP In the Insolvency Act 1986-
(a) in section 117(2) (county court winding-up jurisdiction)-
(i) for "the amount of a company's" substitute "in the case of a company registered in England and Wales the amount of its", and
(ii) omit "of the district in which the company's registered office is situated",
(b) omit section 117(4) and (6),
(c) in section 197(1)(a) for "a specified" substitute "the",
(d) in section 373(1) for "county courts" substitute "county court",
(e) in section 373(3)(a) for "Central London County Court" substitute "county court",
(f) in section 373(3)(b) (jurisdiction in relation to insolvent individuals)-
(i) for "each" substitute "the", and
(ii) for "the insolvency district of that court" substitute "any other insolvency district",
(g) in section 374(1) for the words from "of each" to the end substitute ", or districts, of the county court.",
(h) in section 399(3) for the words from "a county court" to the end substitute "the county court.",
(i) in section 399(5)-
(i) for the words from "each" to "Parts" substitute "the county court", and
(ii) for "two or more different" substitute "both",
(j) in section 399(6) for "another" substitute "the other",
(k) for section 413(3)(d) substitute-
"(d) a district judge;", and
(l) in paragraph 2 of Schedule 9-
(i) omit "or a registrar of a county court having jurisdiction for the purposes of those Parts", and
(ii) omit "or, as the case may be, that county court".
51AQ In Schedule 1 to the Interpretation Act 1978, in paragraph (a) of the definition of "County court", for "a court held for a district under" substitute "the county court established under section A1 of".
51AR In section 26(7)(g) of the Judicial Retirement and Pensions Act 1993 omit "in the county courts".
51AS In the Juries Act 1974-
(a) in sections 1(1), 2(1) and 12(6) for "county courts" substitute "the county court", and
(b) in section 7 for "any county", and in sections 17(2) and 23(2) for "a county", substitute "the county".
51AT In section 1(6A) of the Land Charges Act 1972 for "county courts" substitute "county court".
51AU In section 10 of the Landlord and Tenant (Requisitioned Land) Act 1942, and in section 2(2) of the Landlord and Tenant (Requisitioned Land) Act 1944, after "exercised" insert "in England and Wales by the county court and in Northern Ireland".
51AV In paragraph 4 of Schedule 2 to the Leasehold Reform Act 1967-
(a) omit "making the order or another county court", and
(b) for "county courts" substitute "the county court".
51AW In paragraph 4 of Schedule 14 to the Leasehold Reform, Housing and Urban Development Act 1993 omit "or another county court".
51AX In section 194(10) of the Legal Services Act 2007 in the definition of "civil court" as originally enacted and as substituted by section 61 of the Legal Aid, Sentencing and Punishment of Offenders Act 2007 for "any county" substitute "the county".
51AY In section 35(3) of the Limitation Act 1980 for "any county" substitute "the county".
51AZ In paragraph (a) of the second sentence in section 1(1) of the Litigants in Person (Costs and Expenses) Act 1975 before "in a county court" insert "in England and Wales in the county court or in Northern Ireland".
51BA In sections 62(1) and 87(2) of the Local Government Act 1948 omit "for the county court district in which the property in question is situated".
51BB In the London Building Acts (Amendment) Act 1939 (c. xcvii)-
(a) in section 103(2) for "such court", in both places, substitute "that court", and
(b) in section 107(1) omit "of the district in which the premises are situate".
51BC In Schedule 1 to the London Local Authorities Act 1996 (c. ix)-
(a) in paragraph 9(1) for "if a county" substitute "if the county",
(b) in paragraph 10(1)(a) for "a county" substitute "the county", and
(c) in paragraph 10(1)(c) omit "which made the order".
51BD In section 64(2)(b) of the London Local Authorities Act 2007 (c. ii) for "if a county" substitute "if the county".
51BE In paragraph 7 of Schedule 1 to the London Local Authorities and Transport for London Act 2003 (c. iii) until its repeal by the Traffic Management Act 2004 is fully in force-
(a) in sub-paragraph (1)(c) omit "which made the order",
(b) in sub-paragraph (5) for "a district judge" substitute "the county court",
(c) in sub-paragraphs (6), (7) and (8)(d) for "district judge" substitute "county court", and
(d) in sub-paragraph (7) for "he" substitute "the court".
51BF In section 25 of the London Overground Wires &c. Act 1933 (c. xliv) for "any county court having otherwise jurisdiction in the matter" substitute "the county court".
51BG In paragraph 8(3) of Schedule 3B to the Medical Act 1983 after "made" insert "in England and Wales to the county court or, in Northern Ireland,".
51BH In paragraph 28 of Schedule 3 to the Medicines Act 1968 after sub-paragraph (2) insert-
"(2A) For the purposes of this paragraph, England and Wales is to be treated as the district of the county court in England and Wales."
51BI In section 31 of the Mental Health Act 1983 for "County court rules" substitute "rules of court".
51BJ In section 5(1) of the Mobile Homes Act 1983, in paragraph (a) of the definition of "the court", omit "for the district in which the protected site is situated".
51BK In section 73 of the Offices, Shops and Railway Premises Act 1963-
(a) in subsections (1) and (2) for "county court within whose jurisdiction the premises are situate" substitute "court", and
(b) for subsection (3) substitute-
"(3) In subsections (1) and (2) "the court", in relation to any premises, means-
(a) the county court if the premises are in England and Wales, or
(b) if the premises are in Scotland, the sheriff within whose jurisdiction the premises are situate."
51BL In section 4(2) of the Open Spaces Act 1906 after "shall" insert "in England and Wales be either the High Court or the county court and, in Northern Ireland, shall".
51BM In sections 10(7), 29(4) and 29A(1) of the Osteopaths Act 1993-
(a) after "may appeal" insert "in England and Wales to the county court or in Northern Ireland", and
(b) before "the sheriff" insert "to".
51BN In paragraphs 4(4) and 12(4) of Schedule 4 to the Parliamentary Standards Act 2009 for "a county court" substitute "the county court in England and Wales or a county court in Northern Ireland".
51BO In section 23(2) of the Partnership Act 1890 for "or a county court," substitute "or the county court in England and Wales or a county court in Northern Ireland,".
51BP In section 152 of the Pension Schemes Act 1993-
(a) in subsection (1)(a) for "county courts" substitute "the county court", and
(b) in subsection (2) for "the county court rules" substitute "rules of court".
51BQ In paragraph 11(2) of Schedule 3 to the Plant Varieties Act 1997 for "the county court rules" substitute "rules of court".
(a) in section 48(12)(a) for "or" substitute "means the county court and, in",
(b) in sections 77(4), 92(4) and 115(4) after "may apply" insert "in England and Wales to the High Court or the county court or, in Northern Ireland,",
(c) in sections 77(12) and 92(8) for the words after "In" substitute "its application to Gibraltar, subsection (4) has effect as if for the words between "apply" and "leave" there were substituted "to the Gibraltar court for".", and
(d) in paragraphs 2(7), 6(7), 9(4) and 13(3) of Schedule 19C after "is to" insert "(in England and Wales) the county court or (in Northern Ireland)".
51BS Omit section 9(2) of the Protection from Eviction Act 1977 (exercise of jurisdiction by district judges).
51BT In section 9(5) of the Protection of Children Act 1999 after "imposed" insert "in England and Wales by the county court or in Northern Ireland".
51BU In section 32(10) of the Public Audit (Wales) Act 2004 for "courts" substitute "court".
51BV In paragraph 6(2)(a) of Schedule A1 to the Regulation of Investigatory Powers Act 2000 for "a county court" substitute "the county court in England and Wales or a county court in Northern Ireland".
51BW In section 104(1) of the Road Traffic Act 1988 (conduct of proceedings)-
(a) for "before the registrar of a" substitute "the", and
(b) after "may" insert ",except in the county court if rules of court provide otherwise,".
51BX In section 113(3) of the Settled Land Act 1925 for "any county" substitute "the county".
51BY In paragraph 9(3)(a) of Schedule 5 to the Social Security Act 1989 for "such a" substitute "that".
51BZ In paragraph 3(1) of Schedule 4 to the Social Security Contributions (Transfer of Functions, etc.) Act 1999 after "proceedings" insert "in England and Wales in the county court or in Northern Ireland".
51CA In the Solicitors Act 1974-
(a) in section 61(6) for "any county" substitute "the county",
(b) in section 68(2) for "that county" substitute "the county", and
(c) in section 69(3) for "any county court in which any part of the business was done" substitute "the county court".
51CB In section 61(3)(a) of the Taxation of Chargeable Gains Act 1992 for "county courts" substitute "the county court".
51CC In section 66(1) of the Taxes Management Act 1970 after "proceedings" insert "in England and Wales in the county court or in Northern Ireland".
51CD In the Torts (Interference with Goods) Act 1977-
(a) in section 4(4)-
(i) for "under section", in the first place, substitute "for the High Court in England and Wales",
(ii) omit "84 of the Senior Courts Act 1981", and
(iii) omit "99 of the Supreme Court of Judicature (Consolidation) Act 1925",
(b) in section 4(5)-
(i) after "in relation to county courts" insert "in Northern Ireland",
(ii) after "High Court" insert "in Northern Ireland", and
(iii) omit "84", "99", "of the said Act of", "1981", "1925", "section or" and "section 75 of the County Courts Act 1984 or",
(c) in section 4 after subsection (5) insert-
"(6) Subsections (1) to (4) have effect in relation to the county court in England and Wales as they have effect in relation to the High Court in England and Wales.",
(d) in section 9(3) and (4) after "brought" insert "in England and Wales in the county court or in Northern Ireland",
(e) in section 9(3)-
(i) before "county court rules" insert "rules of court or", and
(ii) for "same county" substitute "same", and
(f) in section 13(3) for the words from the beginning to "if" substitute "In this section "the court", in relation to England and Wales, means the High Court or the county court and, in relation to Northern Ireland, means the High Court or a county court, save that a county court in Northern Ireland has jurisdiction in the proceedings only if".
51CE In section 75(1) of the Trade Marks Act 1994 for "or a county court having" substitute ",or the county court where it has".
51CF In section 82(2)(b) of the Traffic Management Act 2004 for "if a county" substitute "if the county".
51CG In the Tribunals, Courts and Enforcement Act 2007-
(a) in section 121(8) for paragraphs (a) and (b) substitute-
"(aa) in relation to an administration order or an enforcement restriction order: the county court;", and
(b) omit sections 123(6) and 131(2), and paragraph 79(2)(b) of Schedule 13.
51CH In section 67(2) of the Trustee Act 1925 for "county courts" substitute "the county court".
51CI In section 11(1)(a) of the UK Borders Act 2007 for "a county court, in England and Wales or" substitute "the county court in England and Wales or a county court in".
51CJ In section 5CE(5)(a) of the Veterinary Surgeons Act 1966 for "a county court" substitute "the county court in England and Wales or a county court in Northern Ireland".
51CK In paragraph 11(1) of Schedule 15 to the Water Resources Act 1991 omit "for the area in which the land or any part of it is situated".
76: Schedule 9, page 114, line 21, at end insert-
|"Literary and Scientific Institutions Act 1854 (c. 112)||In section 30, "the judge of" and "aforesaid".|
|Hovercraft Act 1968 (c. 59)||In section 2(1), "27 to 29,".|
|Senior Courts Act 1981 (c. 54)||In Schedule 5, the entry for the Torts (Interference with Goods) Act 1977.|
|County Courts Act 1984 (c. 28)||In Schedule 2, paragraph 64."|
77: Schedule 9, page 114, line 35, at end insert-
|"Legal Services Act 2007 (c. 29)||In Schedule 16, paragraph 69(a).|
|Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 (S.I. 2009/871)||Article 9(1) and (2)."|
Amendments 70 to 77 agreed.
Schedule 9, as amended, agreed.
Schedule 10 : The family court
Amendments 78 to 84
Moved by Lord McNally
78: Schedule 10, page 116, line 20, leave out "chairmen of employment tribunals" and insert "Employment Judges"
79: Schedule 10, page 116, line 21, after "Wales" insert "or for Scotland"
80: Schedule 10, page 116, line 39, leave out from beginning to "a" in line 43
81: Schedule 10, page 116, line 44, leave out from "court" to "may" in line 45
82: Schedule 10, page 116, line 47, after "judge," insert "or a body of which the judge is a member or officer, or a body of whose governing body the judge is a member,"
83: Schedule 10, page 117, line 40, at end insert-
"(7A) Paragraph 5 of that Schedule (duty to make rules to achieve purpose specified by Lord Chancellor) does not apply in relation to rules under this section."
84: Schedule 10, page 123, line 20, leave out from "1958" to end of line 21 and insert ", the Maintenance Orders (Reciprocal Enforcement) Act 1972 or Part 1 of the Civil Jurisdiction and Judgments Act 1982."
Amendments 78 to 84 agreed.
Moved by Lord McNally
84A: Schedule 10, page 126, line 25, at end insert "or the first rules under section 31O(4)"
I beg your Lordships' pardon; I have lost my place. I apologise to the Committee for the delay in getting to my feet. I do not think that I have ever got so many amendments through at one go. I was overwhelmed by my success. However, I am slightly worried as the Chamber looks rather like a scene from the Alfred Hitchcock film "The Birds", in which the birds start to appear rather menacingly. I am looking at the Cross Benches where noble Lords are starting to come in and wait.
These amendments implement one of the recommendations of the Delegated Powers Committee's report on the Bill. In line with that committee's recommendation, the amendments provide that the first rules to be made specifying the functions of judges of the family court which can be performed by legal advisers or their assistants will be subject to the affirmative procedure. Any subsequent rules will, as the Bill currently provides, be subject to the negative procedure. I beg to move.
My Lords, I do not belong to the flock to which the noble Lord referred but I want to speak briefly to this amendment because I have some concerns about this matter, not so much as regards the procedure in terms of requiring resolutions but on the substance of the functions that are proposed to be conferred on legal advisers, as they appear to be very wide. Of course, justices clerks can take certain decisions now but it seems that that could be much extended under the provisions in Schedule 10, at page 124, which would allow the Lord Chancellor, with the agreement of the Lord Chief Justice, to,
"make provision enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser".
It is a long time since I participated in a magistrates' court, whether as regards the criminal law or a family court, but it is not clear to me what this is aimed at.
The concern has been expressed before in your Lordships' House, and I have touched on it again today, about the potential to displace the lay magistracy with professionals. In that context I think of people who used to be called stipendiary magistrates but are now district judges. That is a displacement upwards in the qualification stakes, as it were, but this provision is not necessarily a measure of that kind. It would allow a legal adviser, a justices' clerk or an assistant legal adviser to take decisions around family matters. I am not sure whether that is the intention but perhaps the Minister could indicate what sort of decisions are envisaged to be delegated to a legal adviser as opposed to a properly constituted family court judge or a bench of judges. I would be reluctant to see significant functions determined by the legal adviser to which this amendment refers. However, I may have got it wrong. I await the Minister's enlightenment with interest, if there is such enlightenment.
My Lords, I am happy to try to clarify the thinking behind this. The Delegated Powers Committee made this recommendation because it felt that the provision in the Bill represented an expansion of the existing power in Section 28 of the Courts Act 2003. Under this Act, functions of the magistrates' court may be delegated in rules to justices' clerks if a function is one which may be undertaken by a single justice.
As part of the creation of the family court, all judges, including magistrates, who deal with family proceedings will become judges of the family court. New Section 31O of the Matrimonial and Family Proceedings Act 1984 provides a power for the Lord Chancellor to make rules to enable functions of the family court, or of a judge of the court, to be carried out by a legal adviser. As is the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.
This new measure provides scope for justices' clerks and assistant justices' clerks acting as legal advisers and assistant legal advisers to the family court to carry out a wider range of the court's functions than they currently perform. This is because the functions of the family court will be wider than those of the magistrates' courts currently dealing with family proceedings, since the family court will have jurisdiction to deal with a wider range of family proceedings.
We are discussing with the judiciary how the new powers may be used. As I say, as in the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.
I am grateful to the Minister for that information as far as it goes but I am afraid that it does not help me to understand what kind of decisions might now fall to be made by a legal adviser or assistant legal adviser that are not currently being made. I appreciate that the Minister may not be able to give an answer to that at this point, but it would be very helpful to have that indication before Report. Presumably there is time for consultation. There must be some concept of what would be different under a new regime, if agreed by the courts. I understand, of course, the rules procedure and indeed the approval procedure that the amendment prescribes. However, I still do not understand the outcome, and I am aware that there is concern about it. My noble friend Lord Rosser has shown me a document from the London courts which expresses concern about this general issue of the movement of decision-making away from magistrates themselves, who will be judges of the family court.
It would be helpful to your Lordships' House to understand exactly what difference is anticipated to emerge from these discussions and consultations in the actual operation of the courts-where decisions will be made, who will make them and what they would cover. Again, I repeat that I do not expect the Minister to deal with that tonight, but it would be helpful to have an assurance that we can have clarity about this when we get to Report.
It is a very fair question and I will try to give the noble Lord a very full answer
Amendment 84A agreed.
Amendments 84B to 99
Moved by Lord McNally
84B: Schedule 10, page 126, line 26, at end insert "or rules"
85: Schedule 10, page 126, line 39, at end insert-
"Debtors Act 1869 (c. 62)
1A (1) In proviso (1) to section 5 of the Debtors Act 1869-
(a) for the words from "any court other than" to "is to say," substitute "the county court-", and
(b) omit paragraph (c).
(2) In that section-
(a) for "superior courts may" substitute "High Court or family court may",
(b) for "by a superior court", and for "by any superior court", substitute "by the High Court or family court", and
(c) at the end insert-
"Section 31E(1)(b) of the Matrimonial and Family Proceedings Act 1984 (family court has county court's powers) does not apply in relation to the powers given by this section to the county court.""
86: Schedule 10, page 126, line 41, at end insert ", but sections 2(1) to (5), 2A and 5(2) to (4) of that Act as applied by section 36(3) of the Civil Jurisdiction and Judgments Act 1982 (re-registration in different Northern Ireland court of orders made in England and Wales or Scotland and registered in a Northern Ireland court) have effect without the amendments made in them by this Schedule."
87: Schedule 10, page 128, line 39, at end insert-
"9A Section 18 (powers of magistrates to review committals etc) is repealed.
9B (1) Section 20 (registration, variation and arrears) is amended as follows.
(2) Omit subsections (1) and (2) (magistrates' courts: applications for registration, revocation or variation of maintenance orders).
(3) In subsection (8) (repeated complaints to enforce payment)-
(a) for "a complaint" substitute "an application", and
(b) for "complaint", in the second and third places, substitute "application".
(4) For the title substitute "Repeat applications to enforce payment of maintenance arrears".
9C In section 21(1) omit the definition of "magistrates' court".
Public Records Act 1958 (c. 51)
9D In paragraph 4(1) of Schedule 1 to the Public Records Act 1958 (records which are public records) after paragraph (a) insert-
"(aa) records of the family court;"."
88: Schedule 10, page 129, line 12, at end insert-
"Civil Evidence Act 1968 (c. 64)
11A In section 12(5) of the Civil Evidence Act 1968 in the definition of "matrimonial proceedings" for "a county" substitute "family".
11B (1) In section 11 of the Administration of Justice Act 1970 (restriction on powers of committal under section 5 of the Debtors Act 1869)-
(a) omit the "and" at the end of paragraph (a),
(b) in paragraph (b) for the words from "in respect" to "judgment" substitute "in respect of a judgment", and
(c) after paragraph (b) insert "; and
(c) by the family court in respect of a High Court or family court maintenance order."
(2) In section 28 of that Act (interpretation)-
(a) for ", "county court maintenance order"" substitute "and "family court maintenance order"", and
(b) for ", a county court" substitute "and the family court"."
89: Schedule 10, page 130, line 5, leave out "(a)" and insert "(a)(ii)"
90: Schedule 10, page 131, line 12, at end insert-
"Litigants in Person (Costs and Expenses) Act 1975 (c. 47)
27A In paragraph (a) of the second sentence in section 1(1) of the Litigants in Person (Costs and Expenses) Act 1975 before "in the Senior" insert "in the family court,"."
91: Schedule 10, page 134, line 25, at end insert-
"50A In section 42(1)(a) and (b) (engaging in vexatious civil proceedings is ground for High Court making order under the section) after "High Court" insert "or the family court"."
92: Schedule 10, page 135, line 6, at end insert-
"( ) In section 38(4) (regulations about orders which court may not make) after paragraph (d) insert "; and
(e) may make different provision for different purposes.""
93: Schedule 10, page 135, line 28, at end insert-
"Administration of Justice Act 1985 (c. 61)
62A In section 53(2) of the Administration of Justice Act 1985 (costs where judge unable to act) before the "and" at the end of paragraph (b) insert-
"(ba) proceedings in the family court;".
Insolvency Act 1986 (c. 45)
62B In section 281(8) of the Insolvency Act 1986 (discharge does not release bankrupt from bankruptcy debt arising under order made in family proceedings), in the definition of "family proceedings", for paragraph (a) (but not the "and" following it) substitute-
"(a) proceedings in the family court;"."
94: Schedule 10, page 138, line 26, at end insert-
"74A (1) Section 28 (functions of justices' clerks and assistant clerks) is amended as follows.
(2) After subsection (5) insert-
"(5A) For the purposes of subsections (1) to (5) the functions of justices of the peace do not include functions as a judge of the family court."
(3) Omit subsection (9)(b) (requirement to consult Family Procedure Rule Committee) but not the "and" following it."
95: Schedule 10, page 140, line 2, at end insert-
"Legal Services Act 2007 (c. 29)
83A (1) For paragraph 1(7)(c) of Schedule 3 to the Legal Services Act 2007 (rights of audience in chambers of exempt persons) substitute-
"(c) the proceedings are not reserved family proceedings and are being heard in chambers-
(i) in the High Court or county court, or
(ii) in the family court by a judge who is not, or by two or more judges at least one of whom is not, within section 31C(1)(y) of the Matrimonial and Family Proceedings Act 1984 (lay justices)."
(2) In paragraph 1(10) of that Schedule in the definition of "family proceedings" after "also includes" insert "any proceedings in the family court and"."
96: Schedule 10, page 140, line 35, at end insert-
|"In Schedule 7, paragraphs 23 and 24."|
97: Schedule 10, page 141, line 14, at end insert-
|"Family Law Act 1996 (c. 27)||In Schedule 8, paragraph 49."|
98: Schedule 10, page 141, line 21, after "paragraphs" insert "22,"
99: Schedule 10, page 141, line 33, leave out "101" and insert "103"
Amendments 84B to 99 agreed.
Schedule 10, as amended, agreed.
Schedule 11 : Transfer of jurisdiction to family court
Amendments 100 to 114
Moved by Lord McNally
100: Schedule 11, page 145, line 23, at end insert-
"16A (1) In section 15(2) and (3) (service of process: endorsement by, and declarations before, justices of the peace etc) for "justice of the peace" substitute "judge of the family court".
(2) In Schedule 2 (forms)-
(a) in the form numbered 1 (endorsement of summons) for "justice of the peace" substitute "judge of the family court", and
(b) in the form numbered 2 (declaration as to service) for "Justice of the Peace" substitute "judge of the family court"."
101: Schedule 11, page 148, line 17, at end insert-
"Maintenance Orders (Reciprocal Enforcement) Act 1972 (c. 18)
27A The Maintenance Orders (Reciprocal Enforcement) Act 1972 is amended as follows.
27B (1) Section 3 (magistrates' court may make provisional maintenance order against person residing in reciprocating country) is amended as follows.
(2) In subsection (1) for "a magistrates' court" substitute "the family court".
(3) In subsection (4) (application not to be transferred etc)-
(a) before paragraph (a) insert-
"(za) a court to transfer proceedings from the family court to the High Court,", and
(b) in paragraphs (a) and (b) after "magistrates' court" insert "in Northern Ireland", and
(c) in those paragraphs after "High Court" insert "of Justice in Northern Ireland".
(4) In subsection (6) (effect of order being confirmed) omit "magistrates'".
(5) Omit subsection (7)(b) (Northern Ireland: application of subsection (4)).
(6) In the title omit "magistrates'".
27C In section 4(6) (Scotland: application of section 3(5) and (6)) after "for references to" insert "a court that are references to the family court or".
27D Omit section 5(3A) (modification of section 60 of Magistrates' Courts Act 1980 in relation to maintenance orders to which section 5 applies).
27E In section 7 (confirmation of order made in reciprocating country)-
(a) in subsection (5A) (court to exercise one of its powers under subsection (5B) upon confirming order)-
(i) for "a magistrates' court in England and Wales" substitute "the family court", and
(ii) for "shall" substitute "may",
(b) in subsection (5B) (available powers)-
(i) in each of paragraphs (a) and (b) for the words from "the designated" to "Wales" substitute "the court",
(ii) in paragraph (b) for "59(6) of the Magistrates' Courts Act 1980" substitute "1(5) of the Maintenance Enforcement Act 1991",
(c) in subsection (5C) (deciding on exercise of powers)-
(i) for "which of the" substitute "whether to exercise any of its", and
(ii) omit "it is to exercise", and
(d) in subsection (5D) (power to require account to be opened) for "Subsection (4) of section 59 of the Magistrates' Courts Act 1980" substitute "Subsection (6) of section 1 of the Maintenance Enforcement Act 1991".
27F In section 8 (enforcement of registered maintenance orders)-
(a) in subsection (3) (offence of not giving notice of change of address to appropriate officer)-
(i) for "a registered order" substitute "an order registered in a court in Northern Ireland", and
(ii) for "appropriate officer of the registering" substitute "clerk of that",
(b) omit subsection (3A) (meaning of "appropriate officer"),
(c) omit subsections (4) to (4B) (enforcement by magistrates' courts in England and Wales), and
(d) in subsection (5) (magistrates' court to take prescribed steps) for "The magistrates' court" substitute "A magistrates' court in Northern Ireland".
27G Omit section 9(1ZA) (modification of section 60 of Magistrates' Courts Act 1980 in relation to registered order).
27H In section 10(3) (transfer to other magistrates' court)-
(a) after "magistrates' court", in the first place, insert "in Northern Ireland", and
(b) for the words from "that part" to "court is" substitute "Northern Ireland".
27I (1) In section 14(3) (compelling attendance of witnesses etc)-
(a) for the words from "Section" to "1980" substitute "Articles 118(1), (3) and (4), 119 and 120 of the Magistrates' Courts (Northern Ireland) Order 1981", and
(b) after "a magistrates' court" insert "in Northern Ireland".
(2) Omit section 14(6) (Northern Ireland: modifications).
27J In section 17 (proceedings in magistrates' courts)-
(a) in subsection (4) (courts in same area have same jurisdiction)-
(i) after "magistrates' court", in the first place, insert "in Northern Ireland",
(ii) omit the words from "acting", in the first place, to "Northern Ireland,", and
(iii) for "district)" substitute "district",
(b) in subsection (5A) (jurisdiction where respondent resides in reciprocating country) for "a magistrates' court in England and Wales", in both places, and for "such a court", substitute "the family court",
(c) in subsection (7) (proceedings in absence of respondent) for "a magistrates' court", in both places, substitute "the family court in England and Wales or a magistrates' court in Northern Ireland".
27K (1) Section 18 (magistrates' courts rules) is amended as follows.
(2) Before subsection (1) insert-
"(A1) Rules of court may make provision with respect to the matters that would be mentioned in any of paragraphs (b), (c), (e) and (f) of subsection (1) if references in those paragraphs to a magistrates' court, or to magistrates' courts, were references to the family court."
(3) In subsection (1) (provision which may be made in rules of court)-
(a) for the words before paragraph (a) substitute "The matters referred to in subsections (A1) and (2) are-", and
(b) in paragraph (a) for "local justice area", in both places, substitute "petty sessions district".
(4) In subsection (1A) (further provision about rules of court in relation to England and Wales) for "(1)" substitute "(A1)".
(5) For the title substitute "Rules of court".
27L In section 21(1) in the definition of "the appropriate court"-
(a) after ""the appropriate court"" insert "-
(a) ", and
(b) for "Wales or" substitute "Wales means the family court; and
(b) in relation to a person residing or having assets".
27M (1) Section 23 (orders registered in High Court under Maintenance Orders (Facilities for Enforcement) Act 1920) is amended as follows.
(2) In subsection (1) (orders registered at time when 1920 Act ceases to apply)-
(a) after "High Court", in the first place, insert "or the High Court of Justice in Northern Ireland",
(b) for "the High Court", in the second place, substitute "subsection (1A) applies in relation to the order.
(1A) Where the order was at that time registered in the High Court, that court may, on an application by the payer or the payee under the order or of its own motion, transfer the order to the family court, with a view to the order being registered in the family court under this Part of this Act; and where the order was at that time registered in the High Court of Justice in Northern Ireland, that court",
(c) after "magistrates' court" insert "in Northern Ireland", and
(d) after "registered in that" insert "magistrates'".
(3) Before subsection (2) insert-
"(1B) Where the High Court transfers an order to the family court under this section it shall-
(a) cause a certified copy of the order to be sent to an officer of the family court, and
(b) cancel the registration of the order in the High Court."
(4) In subsection (2) (certified copy to be sent to court which is to register order) after "High Court", in the first place, insert "of Justice in Northern Ireland".
(5) In subsection (3) (officer to register order) omit "appropriate".
(6) In subsection (4)-
(a) for "the magistrates'" substitute "a", and
(b) for "appropriate officer of the court" substitute "officer registering it".
(7) Omit subsection (5) (Northern Ireland: modification).
(8) In subsection (6) (meaning of "appropriate officer") for the words from "means-" to the end substitute ", in relation to a magistrates' court in Northern Ireland, means the clerk of the court."
27N In section 26(6)(a) (appropriate officer) for the words from "the designated" to the end substitute "an officer of the family court".
27O In section 27B (sending application to which section 27A applies to appropriate magistrates' court)-
(a) in subsection (1) for the words from "designated" to the end substitute "family court",
(b) in subsection (2) (attempted service of respondent)-
(i) for "Subject to subsection (4) below, if" substitute "If",
(ii) for "a magistrates' court having jurisdiction to hear it" substitute "the family court",
(iii) for "designated officer for the" substitute "family", and
(iv) for "he" substitute "the family court",
(c) omit subsections (4) and (5) (sending on of application to another magistrates' court), and
(d) in the title for "appropriate magistrates'" substitute "family".
27P In section 27C (applications to which section 27A applies: general)-
(a) in subsection (1) for "a magistrates'" substitute "the family",
(b) omit subsection (2) (disapplication of section 59 of Magistrates' Courts Act 1980),
(c) in subsection (3) (court to exercise one of its powers under subsection (4) upon making order) for "shall" substitute "may",
(d) in subsection (4) (available powers)-
(i) in each of paragraphs (a) and (b) for the words from "the designated" to "Wales" substitute "the court", and
(ii) in paragraph (b) for "59(6) of the Magistrates' Courts Act 1980" substitute "1(5) of the Maintenance Enforcement Act 1991",
(e) in subsection (5) (deciding on exercise of powers)-
(i) for "which of the" substitute "whether to exercise any of its", and
(ii) omit "it is to exercise",
(f) in subsection (6) (power to require account to be opened) for "Subsection (4) of section 59 of the Magistrates' Courts Act 1980" substitute "Subsection (6) of section 1 of the Maintenance Enforcement Act 1991", and
(g) in subsection (7) (registration)-
(i) omit "designated officer for the", and
(ii) omit "in the court".
27Q In section 28 (applications by spouses under the Domestic Proceedings and Magistrates' Courts Act 1978)-
(a) in subsection (1) (orders court may make)-
(i) for "The magistrates' court" substitute "On", and
(ii) after "1978" insert ", the family court", and
(b) in subsection (2) (modifications of 1978 Act)-
(i) in paragraph (a) for "to 27" substitute ", 26", and
(ii) omit paragraph (b), but not the "and" following it.
27R In section 28A (applications by former spouses under the Domestic Proceedings and Magistrates' Courts Act 1978)-
(a) in subsection (2) (jurisdiction of magistrates' court) for the words from the beginning to "it" substitute "The family court shall have jurisdiction to hear the application",
(b) in subsection (3) (court's powers) for "magistrates' court hearing the application" substitute "family court", and
(c) in subsection (6) (modifications of 1978 Act)-
(i) in paragraph (e) for "and 25 to 28" substitute "25, 26 and 28", and
(ii) omit paragraph (f), but not the "and" following it.
27S Section 28B (certain orders under Schedule 11 to the Children Act 1989 do not apply) is repealed.
27T (1) Section 32 (transfer of orders) is amended as follows.
(2) In subsection (2) (transfer to other magistrates' court)-
(a) for "the appropriate officer", in the first and second places, substitute "the clerk",
(b) after "magistrates' court", in the first place, insert "in Northern Ireland",
(c) for the words from "that part" to "court is" substitute "Northern Ireland", and
(d) for "the appropriate officer", in the third place, substitute "that clerk".
(3) Omit subsection (2A) (meaning of "appropriate officer").
(4) In subsection (8) in the definition of "the appropriate court"-
(a) after ""the appropriate court"" insert "-
(a) ", and
(b) for "Wales or" substitute "Wales, means the family court; and
(b) in relation to a person residing".
27U In section 33 (enforcement of orders)-
(a) omit subsections (3) and (3A) (enforcement by magistrates' courts in England and Wales),
(b) in subsection (3B) (enforcement by courts of summary jurisdiction in Northern Ireland) after "jurisdiction", in the first place, insert "in Northern Ireland", and
(c) in subsection (4) (magistrates' court to take prescribed steps) after "court" insert "in Northern Ireland".
27V In section 34 (variation and revocation of orders)-
(a) in subsection (1) (powers of registering court etc) omit "subsection (3A) below and",
(b) in subsection (3) (officer to whom application to be sent) for the words from "shall" to the end substitute "shall-
(a) if the registering court is the family court, send the application together with any documents accompanying it to that court,
(b) if the registering court is a magistrates' court in Northern Ireland, send the application together with any documents accompanying it to the clerk of that court.", and
(c) omit subsection (3A) (modification of section 60 of Magistrates' Courts Act 1980 in relation to registered orders).
27W (1) Section 34A (variation of orders by magistrates' courts in England and Wales) is amended as follows.
(2) In subsection (1) (application of certain provisions)-
(a) for "a magistrates' court in England and Wales" substitute "the family court", and
(b) for paragraph (a) substitute-
"(a) section 1(3A) of the Maintenance Enforcement Act 1991;".
(3) In subsection (2) (court may exercise one of powers under subsection (3) upon varying order) for "a magistrates' court in England and Wales" substitute "the family court".
(4) In subsection (3) (available powers)-
(a) in each of paragraphs (a) and (b) for the words from "the designated" to "Wales" substitute "the court", and
(b) in paragraph (b) for "59(6) of the Magistrates' Courts Act 1980" substitute "1(5) of the Maintenance Enforcement Act 1991".
(5) Omit subsections (4) to (8) (variation by justices' clerk).
(6) In subsection (9) (deciding on exercise of powers)-
(a) for "subsections (2) and (8)" substitute "subsection (2)",
(b) for "which of the" substitute "whether to exercise any of its",
(c) omit "it is to exercise", and
(d) after "debtor" insert "or the creditor".
(7) In subsection (10) (power to require account to be opened) for "Subsection (4) of section 59 of the Magistrates' Courts Act 1980" substitute "Subsection (6) of section 1 of the Maintenance Enforcement Act 1991".
(8) In subsection (11) (meaning of "creditor" and "debtor") for "section 59 of the Magistrates' Courts Act 1980" substitute "section 1 of the Maintenance Enforcement Act 1991".
(9) In the title for "magistrates' courts" substitute "the family court".
27X In section 35 (further provision relating to variation etc of orders by magistrates' courts in England and Wales)-
(a) in subsection (1) (powers exercisable notwithstanding that applicant resides outside England and Wales) for "a magistrates' court in England and Wales" substitute "the family court",
(b) in subsection (2) (powers under section 34A not exercisable) omit ", or of the clerk of the court,",
(c) in subsection (3) (proceedings in absence of respondent) for "a magistrates' court in England and Wales" substitute "the family court", and
(d) in the title for "magistrates' courts" substitute "the family court".
27Y (1) Section 36 (admissibility of evidence given in convention country) is amended as follows.
(2) Before subsection (1) insert-
"(A1) A statement contained in a document mentioned in subsection (1) shall-
(a) in any proceedings in the family court arising out of an application to which section 27A(1) of this Act applies or an application made by any person for the variation or revocation of a registered order, or
(b) in proceedings on appeal from proceedings within paragraph (a), be admissible as evidence of any fact stated to the same extent as oral evidence of that fact is admissible in those proceedings."
(3) In subsection (1) (statements made in convention country to be admissible)-
(a) for "A statement contained in-" substitute "The documents referred to in subsections (A1) and (1A) are-",
(b) omit the "or" following paragraph (a) and the "or" following paragraph (b),
(c) after paragraph (c) insert-
"(1A) A statement contained in a document mentioned in subsection (1)",
(d) after "magistrates' court" insert "in Northern Ireland", and
(e) omit "an application to which section 27A(1) of this Act applies,".
27Z In section 38 (obtaining evidence at request of court in convention country)-
(a) in subsection (4) (application of provisions of Magistrates' Courts Act 1980) for the words from "Section" to "1980" substitute "Articles 118(1), (3) and (4), 119 and 120 of the Magistrates' Courts (Northern Ireland) Order 1981",
(b) in subsection (4) after "a magistrates' court" insert "in Northern Ireland", and
(c) omit subsection (6) (Northern Ireland: modifications).
27Z1 In section 38A(1) (rules of court) after "done by" insert "the family court or".
27Z2 In section 42 (provisional order to cease to have effect on remarriage) in subsection (1) and in the title omit "magistrates'".
27Z3 In section 47(3) (interpretation: jurisdiction of magistrates' courts) for the words from "construed-" to "in relation to", in the second place, substitute "construed in relation to"."
102: Schedule 11, page 153, line 10, at end insert-
"Civil Jurisdiction and Judgments Act 1982 (c. 27)
55A (1) The Civil Jurisdiction and Judgments Act is amended as follows.
(2) In the second sentence of section 5(1) (enforcement of maintenance orders under 1968 Convention) after "Article 32" insert "but, if the appropriate court is a magistrates' court in England and Wales, the Lord Chancellor is to transmit the application to the family court".
(3) In section 5(2) (determination of transmitted application) for "officer of that court" substitute "officer-
(a) of the family court if the application is transmitted to that court, or
(b) in any other case, of the court having jurisdiction in the matter".
(4) Omit section 5(5A) to (5C) (enforcement in magistrates' courts in England and Wales).
(5) In section 5(7) omit "England and Wales or".
(6) In section 5(8) omit paragraph (a) (including the "and" at the end).
(7) In the second sentence of section 5A(1) (enforcement of maintenance orders under the Lugano Convention of 2007) after "Article 39" insert "but, if the appropriate court is a magistrates' court in England and Wales, the Lord Chancellor is to transmit the application to the family court".
(8) In section 5A(2) (determination of transmitted application) for "officer of" substitute "officer-
(a) of the family court if the application is transmitted to that court, or
(b) in any other case, of".
(9) Omit section 5A(5) (enforcement in magistrates' courts in England and Wales).
(10) In section 5A(7) omit "England and Wales or".
(11) In section 5A(9) omit paragraph (a) (including the "and" at the end).
(12) Omit sections 6(3)(a) and 6A(3)(a) (appeals in England and Wales).
(13) In section 7(4) (interest on arrears)-
(a) omit "England and Wales or",
(b) omit "section 2A of the Maintenance Orders Act 1958 or", and
(c) for "enable" substitute "enables".
(14) In section 15(3) (jurisdiction of magistrates' courts)-
(a) after "particular magistrates' court" insert "in Northern Ireland", and
(b) for "in the same local justice area (or, in Northern Ireland, for the same petty sessions district)" substitute "for the same petty sessions district".
(15) In section 36(1)(b) (registration of maintenance orders) for "county court order, a magistrates'" substitute "family".
(16) In section 48(3) (rules of court relating to maintenance orders)-
(a) in the words before paragraph (a) for "magistrates' courts," substitute "the family court, the power to make rules of court for magistrates' courts in Northern Ireland,",
(b) in paragraphs (a) and (g) after "purposes of" insert "the family court or", and
(c) in paragraphs (f) and (h) after "which" insert "the family court or".
(17) In section 50 (interpretation) in the definition of "court of law"-
(a) after paragraph (a) insert-
"(aa) in England and Wales, the Court of Appeal, the High Court, the Crown Court, the family court, the county court and a magistrates' court,", and
(b) in paragraph (b) omit "England and Wales or"."
103: Schedule 11, page 154, line 38, at end insert-
"71A In section 14(1) (enforcement of residence orders in magistrates' courts) omit "under section 63(3) of the Magistrates' Courts Act 1980"."
104: Schedule 11, page 157, line 5, at end insert-
"Criminal Justice Act 1991 (c. 53)
93A In section 60(3) (applications under section 25 of Children Act 1989 in certain cases) for "92(2) of that Act or section 65 of the 1980" substitute "92(7) of that"."
105: Schedule 11, page 165, line 9, at end insert-
"170A In section 98F (power of constable to assist in exercise of powers of entry)-
(a) omit subsection (5) (which applies Schedule 11 to the Children Act 1989 to proceedings under section 98F), and
(b) for subsection (6) (meaning of "the court") substitute-
"(6) In this section "court" means the High Court or the family court.""
106: Schedule 11, page 166, line 5, after "paragraphs" insert "105, 109,"
107: Schedule 11, page 166, line 6, at end insert-
|"Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26))||In Schedule 6, paragraphs 21 and 25."|
108: Schedule 11, page 166, line 10, leave out "and 70" and insert ", 45, 50, 70 and 89(2)"
109: Schedule 11, page 166, line 15, leave out "paragraph 3" and insert "paragraphs 3, 13, 14, 18 and 21"
110: Schedule 11, page 166, line 18, leave out "paragraph 2(7)" and insert "paragraphs 2(7), 7, 9 and 15"
111: Schedule 11, page 166, line 24, at end insert-
|"Access to Justice Act 1999 (c. 22)||In Schedule 13, paragraphs 73(1) to (3), 79 and 80."|
112: Schedule 11, page 166, line 30, at end insert "151 to 153, 154(a), 155(2)(a), 157, 158(a), 159 to 163,"
113: Schedule 11, page 166, line 31, after "196(2)," insert "268, 269,"
114: Schedule 11, page 167, line 10, column 2, leave out from beginning to "8." in line 12 and insert "Articles 5 to"
Amendments 100 to 114 agreed.
Schedule 11 agreed.
Clause 18 : Judicial appointments
Moved by Lord Lloyd of Berwick
115: Clause 18, page 16, leave out lines 24 to 27
Amendments 115 and 116 are both concerned with the constitution of the Supreme Court. Amendment 120 is concerned with diversity, and applies not only to the Supreme Court but to the Court of Appeal and the High Court. These amendments were all grouped together, but it might be convenient for the Committee to hear the argument first on Amendments 115 and 116, and to hear the Minister's reply on that before I develop the argument on Amendment 120. They are closely connected, and so that might be convenient, as it would enable me to rest my voice and the Minister a chance to get in-I was going to say, before it is too late.
At Second Reading I expressed some surprise, even incredulity, that we should be seeking to introduce part-time judges into the Supreme Court. So far as I know, there are no part-time judges in the Supreme Court of the United States, or in the International Court at The Hague, or indeed at any other supreme court anywhere else in the world. The Explanatory Notes give no reasons for this sudden change in the constitution of the Supreme Court so soon after its creation. However, the reason appears to be that the Government want to encourage more women and ethnic minority judges to apply for membership of the Supreme Court. Thus, if the Government's view is accepted, one could have 11 full-time white judges-including, by convention, always two from Scotland and one from Ireland-plus one part-time woman judge and another part-time black judge, making 13 judges in all, but only 12 full-time equivalents. That seems to be the idea.
What, then, is the difficulty? Everybody agrees on two things. First, that in choosing judges at any level, one must always choose the best available candidate. This principle is now enshrined in Section 63(2) of the 2005 Act, which says that selection must be solely on merit. I said that everybody agrees about that, but that is not quite true, because the noble and learned Lord, Lord Falconer, does not agree. He believes that merit is only a threshold, and is supported in that view by Professor Cheryl Thomas. However, their view was, I think I can say, decisively rejected by the Constitution Committee, so I will say no more about it.
The second thing on which we are all agreed is that we need greater diversity among the judges, and particularly at the top. The difficulty is how to achieve that second objective without infringing the first. This problem has been around for a long time-almost for as long as I can remember. If there had been a quick solution, successive Lord Chancellors would, I am quite sure, have found it by now. However, sadly, there is no quick or easy solution.
The Government think that they may now have found a way forward. They argue that we should be able to appoint part-time judges in the Supreme Court in order to enable women with family commitments to apply for that appointment. I say at once that that is a very strong argument-indeed a decisive one-at the circuit judge level and below, where applications are likely to come from much younger women. However, I cannot see what relevance it could have to the Supreme Court, where the only family commitments that any applicant is likely to have will be those of a grandparent. I cannot for the life of me see how the argument could apply in the place of male judges from ethnic minorities.
The truth is that if we enact Clause 18 and Schedule 12, it will not make the slightest difference to the number of women or black judges applying to become Supreme Court judges. In practice, therefore, if this part of the Bill is enacted, it will do nothing at all to increase diversity at that level, which is the whole object. I suggest that since that is the only reason given for taking this novel course, we should think no more about it.
It may be said at this stage that this is a depressing outlook, which was a point made by the noble Lord, Lord Lea of Crondall, during my speech at Second Reading, and I was very glad that he made that intervention. However, I have to tell him and the Committee that it is not all gloom. If one takes the figures given on page 25 of the Constitution Committee report, in 1998 only 10% of all judges were women. By 2005 the figure was 17%, and now it is 22%-more than double. Of the 2,500 appointments made by the Judicial Appointments Commission since 2005, 35% have been women. One finds the same picture in the 2010 report from the advisory panel.
In 1998, there were no women sitting as Law Lords, only one woman in the Court of Appeal, and only nine in the High Court. By the end of 2011, there was one woman sitting in the Supreme Court; there were five women in the Court of Appeal, in contrast to one; and 18 in the High Court, in contrast to nine. There are at least 78, and probably many more, on the circuit Bench.
Given that the noble and learned Lord kindly mentioned my intervention, he will agree that it specifically related to another aspect of inequality of access, whereby 75% of judges-and the percentage is higher, the higher up you go-as compared with 7% of the population, were educated at public schools. Although his point about women is a good one, the noble and learned Lord, Lord Lloyd, said that my point on public schools was a bad one on the grounds that there is no way in which you can manipulate appointment on merit to deal with something that happened 50 years ago, such as where you went to school. I simply ask the noble and learned Lord, if I concede that you cannot do anything in terms of social engineering at this level, whether he will agree that the judiciary should take on board that it is highly damaging if nothing is seen to be done at the junior barrister level regarding access to chambers. Mummy and daddy can afford to take you through that period, but working-class people cannot have that access. Will the noble and learned Lord take that point in any way at all, because he did not do so at Second Reading?
I am grateful to the noble Lord for intervening again. I had interpreted his question at Second Reading as referring to diversity as a whole, and not limited to the number of judges who had been to public school. The Government's case is based on the need to appoint more women judges, rather than more men, from people who have not been to public school. I am afraid that I do not have the comparative figures from 1998 and today on those who have been to public school, but I could perhaps find them and let the noble Lord know in due course.
The lesson that I draw from the figures that I have given is surely clear enough. If you want more diversity at the top, in the sense that Government and all of us want diversity, you must start at the bottom and work up, as we have already done and as the figures show. Women with family commitments are already being appointed in large numbers as part-time judges to the circuit Bench and below. In due course, the best of those women-and I can tell the Committee that from my experience the best are very good indeed-will, like the best men, reach the top via the High Court and the Court of Appeal. Yes, we all accept that it is a slow process, but there is no short cut to the top-a short cut implied in the proposal to allow women to sit part time in the Supreme Court-nor should there be such a short cut without infringing the overriding principle that the appointments must be solely on merit.
I have one last point. Introducing part-time judges into the Supreme Court would, on any view, be a major change. The court has been in existence only since 2010. It is surely too soon to effect such an important change without much more thought and further consultation. This is a point that I suspect will be developed by the noble Lord, Lord Goodhart. The answers given to question 13 in the recent consultative exercise would have been all but useless in relation to the Supreme Court, even if the basis on which that question was asked had been comprehensible, which it was not-to me at any rate. In contrast, the composition of the Supreme Court was given much thought by the Select Committee in 2004. The noble and learned Lord, Lord Falconer, was a member of that committee as Lord Chancellor and he played a full part. He will remember that there was much discussion about whether the Supreme Court should consist of 15 judges, as some thought, or nine, as others thought, so that it could sit en banc. However, it was never once suggested by the noble and learned Lord or anyone else that we ought to have part-time judges in the Supreme Court. Yet the diversity problem at that time was even greater than it is today.
My Lords, I simply wish to ask the noble and learned Lord whether or not the strictures that he has applied to appointments to the Supreme Court would apply also to the High Court and the Court of Appeal, because-I speak in my capacity as chairman of the Constitution Committee, which the noble and learned Lord kindly cited-we recommended that the Senior Courts Act 1981 should be amended to allow flexible working to be included at a senior level, but not at the Supreme Court.
Indeed. I have to answer the noble Baroness by saying that I am certainly not at the moment persuaded that part-time judges should be appointed to the Court of Appeal. I simply do not see how it would work. I take the same view about High Court judges. The way to the High Court Bench for the sort of women whom the noble Baroness has in mind is via the circuit Bench. There is a clear way through for them. Indeed, one noble Baroness who is here today has taken exactly that course.
Perhaps I may follow up on that. I am not clear why the noble and learned Lord thinks that it is okay for there to be part-time circuit judges but not part-time High Court judges. I say that because I appointed High Court and circuit judges who had young children. I am completely unclear as to why the noble and learned Lord draws a distinction.
The noble and learned Lord, as Lord Chancellor, never appointed a part-time judge to the High Court. He quite rightly appointed plenty of part-time judges to the circuit Bench, and that was correct because they are obviously likely to be younger. We have to encourage young women with family commitments to come forward at that stage. The noble Lord will be the first to accept that not many such women apply to become members of the Supreme Court.
The noble and learned Lord will confirm that I was not legally entitled to appoint them to the High Court. That is the point of the amendment.
I confirm that the noble and learned Lord was not entitled to appoint to the High Court, but there was no need for him to do so because he could, and did, appoint to the circuit Bench, from which High Court judges would emerge. He knows that very well.
Perhaps I may be permitted to intervene on this matter. The lifestyle of a High Court judge is of course very different from that of a circuit judge. High Court judges sit half the time in London and half the time on circuit. Circuit judges do what they are entitled to do; they sit on circuit. Looking after a family is far easier if you are a circuit judge than if you are a High Court judge.
I am sorry to interrupt, but it appears that in the order in which these matters are printed, I am the second and final person specifically connected with Clause 18 in this group, and it seems to me that this is the point at which I should be able to state my views on this matter.
My amendment has been moved by me and supported by two other noble Lords who would like to speak to it.
I am grateful to your Lordships, and I am sure that the noble Lord, Lord Goodhart, will give us the benefit of his wisdom very shortly. I support Amendments 115 and 116, moved by the noble and learned Lord, Lord Lloyd of Berwick. Your Lordships know him very well. You know his history and his distinguished attainments. Perhaps I may shortly explain where I come from, both literally and figuratively?
I was for 25 years a judge, first in the High Court of Northern Ireland, in the Court of Appeal. For seven years I was Lord Chief Justice of Northern Ireland, and very closely concerned with appointments at all levels. Then, for the final five years before I retired I was a member of the Appellate Committee of this House, sitting as a Lord of Appeal in Ordinary, and hearing a very wide range of appeals, including some of considerable significance in the public interest.
I also gave evidence to the Select Committee of this House on the constitution, and I regret rather that they did not see fit to accept all of my submissions. I do not say that out of any feeling of personal pique, but rather because of the strength of my belief that one must appoint the best persons to judicial posts. By best, I mean most fitted to carry out judicial functions. That must and shall always be, I hope, the paramount criterion.
It is vital to do that to preserve the quality of justice and of the legal system, to which other persons have paid tribute on other occasions. I accept without reservation that that requires a certain amount of diversity. First of all, diversity of skills and experience-that goes without saying-so that the Court may have the benefit of the best advice and participation of those who really know about a particular subject. Secondly-and this is a more delicate area-diversity of background, gender, ethnicity, and professional experience and background.
I also accept, quite unreservedly, that facilitating part-time working is highly desirable, to help women in particular to pursue their careers and combine them with family responsibilities. I am strongly in favour of this where it is achievable. The provisions of paragraphs 2 and 10 of Schedule 12 are designed to assist this admirable object. My point is that the intention is excellent but the method is wrong.
Part-time appointments at the higher level-High Court, Court of Appeal, and Supreme Court-simply will not work. First, judges in any of those courts have to be available to shoulder their share of the burden of long and complex cases. That is simply not possible for a part-time judge. That applies most obviously at trial court level, where you might have to take a six-month trial, or a long civil case. If you cannot take your share of those, you are obviously deficient and in default in some respect.
I am very cognisant of the difficulties that might be involved in those scenarios, but has it never happened in the Supreme Court, or in its predecessor court, that a judge in the middle of a trial got ill for an extended period of time? I suggest that both the noble and learned Lords, Lord Woolf and Lord Carswell, are framing this debate in terms of part-time far too narrowly. There is far greater flexibility in the reality of part-time working than the noble Lord suggests.
Perhaps I might develop the point as I come to it. I have no experience myself of a judge taking ill and being unable to carry on, but I do not think that that really assists the argument.
It also applies-and I say this from my own observation-at trial court level, where it is most obvious. It is a significant factor in appellate courts. No doubt in the Supreme Court many cases are quite short-two days, sometimes even less-but there are many cases, and the most important and significant cases tend to be somewhat longer. If a part-time judge is unable to sit on these for practical reasons, and cannot pull his or her weight, then that judge is downgraded in the eyes of other people to being a second-string member of the court. That is no good for anybody.
Secondly, on the practical level a part-time judge would normally need some fixity of schedule, so that the rest of the judge's life can be arranged. That is why a person is likely to want to be a part-time judge on, let us say, Monday and Tuesday of each week. The timetable would have to be juggled to ensure that the judge is able to sit on those regular days. Obviously difficulties would arise if for various reasons an appeal needs to be listed on the other days of the week, and of course that happens, in fitting in the appeals for which that judge's particular skills are required.
It is not as easy as turning up on fixed days and taking cases on those days. I fear that it is bound to lead to a feeling that part-time judges are not pulling their weight. This is highly detrimental to collegiality, which is of prime importance on an appellate bench. It may be viewed-however unfairly-by others that that judge is not a proper member of the court. The judge may also feel, subjectively, concern that she is not fully accepted as a full member. That, although it may not be exactly the feeling held by the others, would undermine the judicial confidence which is so necessary for high-class judicial work.
It is important that we try to find ways of accommodating this problem and of using the talents of able women, of which I am very strongly in favour myself. It is important that we can work out a way of not confining them to the junior ranks where it is easier in practice for them to carry out their functions part-time.
A suggestion has been mooted by the noble and learned Baroness, Lady Butler-Sloss, that one could do that by stages, for a woman. If she has family responsibilities at an earlier part of the time when she is ready for judicial life, then she could be appointed to a lower-tier court, with a clear assurance that when family circumstances change and she would be available for full-time work, she would receive proper and serious consideration for early promotion to the higher levels, and that that assurance should be fully honoured by those who are making the appointments. Paragraph 2 was a well intentioned attempt to facilitate women or other people by extending part-time appointments, but I fear that it did so in the wrong way.
My Lords, I spoke on the subject at Second Reading. What I said is on the record and I will not repeat it. However, I am most anxious that it should not be thought, as a consequence of my speaking in succession to the noble and learned Lords, Lord Lloyd and Lord Carswell, that retired members of the senior judiciary are against increasing diversity. I stress as forcefully as I can that the contrary is true. I know from the times when I was Chief Justice or held other senior offices that we did everything we could in co-operation with successive Lord Chancellors to improve the position. The message that became clear as a result of our efforts was that achievements would be brought by approaching the matter in stages.
The first step involved tackling those who were attending law schools in this jurisdiction and ensuring an egalitarian approach there. I am happy to say that if one goes now to the law schools of this country, one finds at least an equal number of women and men studying to become our lawyers and judges of the future.
The next stage is to make sure that any hurdle that can reasonably be removed is removed from the path of those who enter the legal profession. At the moment our task is to ensure that they realise that the opportunities for judicial appointments are greater today than they have ever been. The appointments system that we have will treat applicants on a totally equal basis irrespective of their sex and of any background that they might consider a possible handicap. The judiciary plays its part in ensuring that the message is heard by those entering the legal profession and by those within it.
On the issue raised by the amendment of the noble and learned Lord, Lord Lloyd, to which I put my name, it is no use putting something in legislation that will have no practical effect. I refer to part-time judges for the Supreme Court, because it seems it is here where the argument seems clearest. From my knowledge of those who might seek this judicial appointment, I can conceive of nobody who could not take a full-time appointment to the Supreme Court but might be able to take part-time employment there. Having made that proposition, I point to the nature of the Supreme Court and to its role in our legal system now that it has been established. It is the highest court we have, and it has the heavy responsibility of maintaining the reputation established by generations of Supreme Court judges, who in the past were called Lords of Appeal in Ordinary. The court is looked on internationally as one of the finest law courts that there is, and its decisions are treated with the greatest respect.
We must do two things. First, we must not fall into the trap of using legislation to make gestures. To put into this legislation a provision that refers to part-time Supreme Court judges, for the purpose of trying to give a message to those who might be coming through the system that they should seek to become a Supreme Court judge, would be unrealistic if it implied that someone of mature years-probably 60-who wished to be a Supreme Court judge could apply for the highest pinnacle of our judiciary on any basis other than full-time. If there is to be an educational process, it should take place at a lower level in the system. I urge the Committee not to put into the Bill a provision that will have the effect of offering part-time employment in the Supreme Court when there is no realistic possibility that there will be any candidate for that part-time post who could be appointed in the foreseeable future.
The result will be that people will say, "Look, in 2012 Parliament specifically passed legislation that was intended to make available to a woman the possibility to sit as a part-time Supreme Court judge-but nobody has done that". It will not happen because there has never been a candidate who could apply to be a Supreme Court judge under present circumstances.
My Lords, I have proposed the removal from the Bill of Clause 18 and Schedule 12. I make it clear that this is not done to abolish the provisions that are dealt with in Clause 18 and Schedule 12. Instead I intend to enable the Government to provide, in proceedings that are separate from the Bill, a better system for the extremely important issue of judicial appointments. The provisions included in the Bill are inadequate and unsatisfactory.
The Constitutional Reform Act 2005 was of great importance. It modified the functions of the Lord Chancellor. In fact, it not only modified the functions but completely altered them. It created a Supreme Court to replace the jurisdiction of the House of Lords. The constitutional importance of the Act was recognised by those who negotiated it and by many others. I am well aware of this because I was one of the Members of the House of Lords who negotiated the matter in detail. Others included the noble and learned Lord, Lord Falconer of Thoroton, who I am very pleased to see in his place and who was then the Lord Chancellor, and the late and greatly missed Conservative Lord Kingsland.
As far as I am aware, the Crime and Courts Bill is the first Bill to make significant amendments to the Constitutional Reform Act. Significant amendments appear first in Clause 18-although all that the clause does is tell us to go and look at Schedule 12, which is tucked away at the back of the Bill. It starts on page 167 and continues to page 201. It starts with the provision that enables any number of judges to be appointed to the Supreme Court provided the judges serving on the court do not permit,
"the full-time equivalent number of judges of the Court at any time to be more than 12".
This is a very significant alteration to the 2005 Act. There should be no attempt to tuck alterations into the back of a much wider Bill such as this one. It is highly doubtful whether this particular alteration should be adopted at any time, and I agree with the proposal from the noble and learned Lord, Lord Lloyd of Berwick, to leave out paragraph 2.
Section 26 of the 2005 Act is amended considerably in Schedule 12. Section 27 of the Act is also amended considerably by paragraphs 1 and 2 of Schedule 12. So it goes on for another 32 pages before we come to the end of Schedule 12. Schedule 12 is much too important to be stuck in as a long schedule, close to the end of Clause 18. Not everything in Schedule 12 is wrong, but the contents are important and should be rewritten and transferred into a separate Bill. Schedule 12, and the minimal Clause 18 that introduces it, raises important issues that need to be considered much more thoroughly and in a different Bill. This is too important a matter to be left as it now is.
I was unable to attend the Bill's Second Reading but a number of other noble Lords spoke in a way that I support to a greater or, in some cases, lesser extent. Those whom I support include the noble Baroness, Lady Jay of Paddington, at col. 993 of Hansard; the noble and learned Lord, Lord Lloyd of Berwick, whom we have already heard speaking, at cols. 996-997; and the noble and learned Lord, Lord Woolf, at cols. 1041 to 1044. However, those whom I draw most attention to are the noble Baroness, Lady Neuberger, at cols. 1016 to 1018 and the noble Baroness, Lady Prashar, at cols. 1024 and 1025. I would refer particularly to a passage from the noble Baroness, Lady Neuberger, except that she is here tonight and I hope that she will explain and put forward her views on this matter herself. I am in total agreement with what she said.
If the Government had been willing and able to pay attention to those objections before Committee stage, it might have been possible to reconsider them then. It is plainly not possible now. The rest of the Bill should of course proceed but Clause 18 and Schedule 12 should be put aside and replaced by a new Bill. Since I introduced my proposal that Clause 18 and Schedule 12 should be removed entirely from the Bill there have been a number of additional amendments to remove parts of them and to add some new parts. I welcome these changes, which would improve the Bill considerably. It remains my view that it would be better to take Clause 18 and Schedule 12 out of the Bill, because they involve some important constitutional changes. However, I have to face the fact that a good deal of work has already been put into Schedule 12 on both sides. In this case, I would be willing not to proceed with my proposal provided it is acknowledged that Clause 18 and Schedule 12 should be replaced by another Bill. Schedule 12 contains some important constitutional changes and it should be recognised that constitutional changes must be clearly identified and justified by those seeking to enact them.
I would be happy if Clause 18 and Schedule 12 went ahead provided that it was done with a reasonable degree of agreement between the parties. I would much prefer it if they went into another Bill, but it is even more important to make clear on this occasion that this has, to some degree, been a mistake. It is necessary to remember that in the future for different issues when we get important matters mixed up with matters which are much less important, as here. I would be willing to support the Bill-I am not saying what provisions I myself would put in it-but we must recognise that something of this kind should not be allowed to happen again and that provisions that make important changes in the constitution should be handled differently.
My Lords, the Minister will undoubtedly reply to the broad-brush criticisms that the noble Lord, Lord Goodhart, has raised. I will just say, on one of his points, that the noble Lord, Lord McNally, and the Secretary of State, Mr Clarke, have been very kind in attending to the Constitution Committee since Second Reading. We have specifically discussed Clause 18 and Schedule 12 with them both, and I must put on record that their dialogue with the Constitution Committee at least has been productive.
I briefly return to the amendment of the noble and learned Lord, Lord Lloyd. Of course, I defer to him, his judicial colleagues and other noble Lords in their experience in the courts, but I would pick up the point made by the noble Baroness, Lady Falkner, about them addressing the issue of part-time working-or as I would more easily describe it, flexible working-in a perhaps somewhat narrow and therefore slightly more difficult way. The noble and learned Lords, Lord Woolf and Lord Carswell, gave evidence to the Constitution Committee during our inquiry into this matter. They said many of the things that they have said tonight and many more things as well. I hear precisely the issues that have been raised about the practical problems. As the debate has widened slightly into the general issue of diversity and appointments generally to the judiciary-which was why I asked my earlier questions to the noble and learned Lord, Lord Lloyd, about which particular aspect he was concerned with-it may be of interest to the Committee if I quote from the Lord Chief Justice. In evidence to us, 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"- which was just one example they gave-
"they can be at home ... I think those sorts of very small changes ... will help".
I want the Committee to understand that there is not a uniformity of views among the senior judiciary, both past and present, about the absolute impossibility of trying to be more flexible in this way.
I also say, with some deference and temerity, that I wonder whether noble Lords and senior judges are perhaps looking exclusively at their profession and not looking more broadly at the ways in which other professions have adapted to flexible working over the past decade. I raised very briefly at Second Reading the example of the medical profession, which has had very entrenched working practices at the senior level, particularly in the surgical specialty, and has now adopted flexible working in a way that met with many of the same problems in theory as have been raised this evening and on other occasions about flexible working within the judiciary. The situation is, of course, different but some of the issues in principle were the same. The adaptation has worked, so that senior members of the medical profession are now much more broadly spread between the genders and there is a much greater sense of genuine diversity.
In this instance, perhaps I may refer the Committee to the evidence of the chairman of the Judicial Appointments Commission, who said to the Constitution Committee:
"This is the first profession that I have touched in my working life where there is not easy access to flexible working arrangements for senior positions. Having salaried part-time working in the High Court would be transformational".
As I say, I speak with some deference on these matters, but it is worth the Committee hearing the views both of the chairman of the Judicial Appointments Commission and the Lord Chief Justice.
My Lords, I am sorry that yet another former senior judge is speaking. I recognise entirely the advantages of flexibility, but in this area there is a limit, and I want to say a few words about it. As a woman, I strongly support diversity on the Bench, particularly having been one of the earliest women judges. I also support encouraging those who leave either side of the legal profession in their thirties and forties for family reasons, very often to bring up young children, so that they can come back and sit on the Bench at a suitable level. To sit part time as a district judge or the judge of a tribunal is an excellent way of wooing back those who we would otherwise lose, to the detriment of the administration of justice. They are an obvious pool for promotion to more senior judicial posts. However, the point comes on the ladder to senior positions when a part-time judge inevitably will be less useful, and there would be some serious objections and disadvantages to part-time sitting.
I can see that it could be difficult for many centres where circuit judges try long and difficult cases, but it would be even more difficult for High Court judges and above. Perhaps I may give two examples. High Court judges, of which I was one for several years, often try-as one would expect-long and complicated cases that last for weeks, months or, occasionally, years. Listing officers would have real difficulties in listing cases if there were part-time judges. Further, as the noble Lord, Lord Thomas of Gresford, has already pointed out, High Court judges go out on circuit for six weeks or sometimes longer. They are a long way from home and return only at the weekends. As a High Court judge I went out on circuit and I can tell noble Lords that, as the mother of a teenager and two younger children, doing so was not easy. However, it is manageable. I felt that otherwise I could not be a High Court judge.
This leads to the second disadvantage. If there are part-time judges at the highest levels, the full-time judges in heavy cases would be likely to bear the heavier burdens. They would try the longer cases. That is because if there is to be any flexibility at all, and a case is going to last for six to nine months, it is unlikely that someone who wants to sit part time would actually be able to take it. That is particularly the case when going on circuit and there is a long case that may take the whole term. How on earth is someone who would prefer to work part time going to leave the family to take a long case? That would be certain to produce a certain degree of resentment among colleagues, who would be expected to take those cases because the part-time judge really could not take on the burden.
In the Court of Appeal, where I also sat, and in particular the Supreme Court, where I did not sit-and they are the purpose of these amendments-the idea of part-time sitting seems very difficult to achieve. How would it work in practice? However, most judges in the Court of Appeal and, perhaps I may say, even more so in the Supreme Court, are older. If candidates wanted the job at that stage of their lives, they would be able to give a full-time commitment, having given a part-time commitment when they were younger and had children to care for. I have to say that by the time I was in the Court of Appeal my children could manage on their own and I had to go home and worry less often about what they were doing-slightly less often since, as a mother, one does not ever stop worrying about one's children. I cannot understand, therefore, why those who start out as part-time judges at a lower level and who are clearly high performers and ought to rise up the ladder, as I went up having started as a district judge, cannot, when they are older, take on the full-time commitment that they were unable to bear when they were younger and had responsibilities for children.
I have to say also that if these clauses are intended as a gesture to underline the undoubted importance of diversity, and are not intended to be reapplied in the higher courts, I would not be too worried. If, however, as I fear, the Judicial Appointments Commission feels that it is its duty to try to apply these clauses when and if they become law, feeling that it will be criticised if it does not do so, that will be very difficult to achieve. If it is achieved by the commission, I believe that it would create major problems. We have to think again about this. I really do not understand why older women, having got over the problems that required them to work part time, could not take on a full-time commitment in the Court of Appeal and the Supreme Court.
My Lords, I find this a much more difficult issue than some noble Lords who have spoken. The noble and learned Lord, Lord Lloyd of Berwick, emphasised that we all agree about the importance of diversity, and the noble and learned Lord, Lord Woolf, emphasised his personal commitment to diversity, which I am aware of and, of course, I recognise. The noble and learned Lord, Lord Lloyd, referred to the statistics and said correctly that some progress has been made, but the position is still woefully inadequate. Some 16% of High Court judges and only 11% of Court of Appeal judges are women. These figures are simply unsatisfactory and urgent progress is desperately required.
As the noble Baroness, Lady Jay of Paddington, mentioned, the Constitution Committee, of which she is the distinguished chairman and I am a member, conducted an inquiry into judicial appointments and reported in March. We found that one of the reasons for there being so few women on the Bench at High Court level and above is the inflexibility of the working arrangements. At paragraph 112 of our report, we observed that one significant reason for the increasing proportion of women at senior levels in other professions in recent years has been due in large part to the greater use of flexible working hours. At paragraph 117, we recommended that allowing flexible working, certainly at the High Court and Court of Appeal levels, was the "minimum change necessary" to promote diversity. We said that:
"For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working".
We need to recognise that many women will either want or need to take career breaks, or work part time or flexibly for family care reasons.
As I understand them, the noble and learned Lords, Lord Lloyd of Berwick, Lord Carswell and Lord Woolf, are essentially concerned about the practicality of part-time working, certainly at the Supreme Court level, but mention has also been made in this debate of the High Court and the Court of Appeal. In my experience, from the perspective of the Bar, I must say that the overwhelming majority of cases in the Supreme Court, the Court of Appeal and certainly in the administrative court occupy three days or less. Of course, there is much work to be done by judges out of court-I do not for a moment suggest that judges work only between 10.30 am and 4.15 pm-but actual time in court, which has been mentioned, occupies three days or fewer. Of course, there are longer cases, sometimes six or nine months, but they are unusual, exceptional or out of the ordinary. In any event-this is why I find this a more difficult issue than some noble Lords who have spoken hitherto-we ought to bear in mind that even at the Supreme Court level, judges have taken time away. They continue to do so, as I understand it, for a month at a time to sit in the Hong Kong Court of Final Appeal. As shown by a notorious example recently, judges at the Supreme Court level take time off, for very good public interest reasons, to sit on inquiries. We should not proceed on the basis that every judge works exclusively, full-time in a particular court.
The noble and learned Lord, Lord Woolf, mentioned-he is absolutely right to emphasise this point-the high reputation of our Supreme Court and, indeed, of our whole judiciary. It is a remarkable fact that as the public has lost confidence-regrettably-in many other institutions of our society, including, most regrettably, Parliament, but also the press and the City, the public rightly retain the utmost confidence in the judiciary. It is one reason why the public are quite prepared to listen carefully, as I am sure they will, to what Lord Justice Leveson will say about press freedom. However, we ought to bear firmly in mind that the confidence of the public in the higher judiciary is in danger of being undermined to the extent that the higher judiciary reflects and is composed of so high a proportion of men with such a small proportion of women.
The point was also made by the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, that surely, when someone has reached their late 50s, or 60, when in the normal course of events they would be eligible for appointment to the Supreme Court, they ought to be prepared to sit full-time. However, surely one can envisage circumstances in which a women aged 60-slightly younger or older-may have a child aged 15 and may find it difficult to sit on the Bench during school holidays. She may also have an elderly relative for whom she is caring. These are not unrealistic examples.
In any event, I suggest that the provisions in the Bill which concern the noble and learned Lords who have spoken are merely permissive. They would obviously not be applied in relation to a Supreme Court appointment unless and until an occasion arose when it was practical to do so. I suggest to noble Lords that, given the importance of a real commitment to flexible working, it would be most unfortunate indeed if the Bill were to contain that commitment but exclude it in principle in any circumstances at Supreme Court level.
This is an issue close to my heart. When I was a young lawyer in the 1970s I contributed to a book called The Bar On Trial, written by a group of young lawyers seeking to address the nature of the Bar at that time. I wrote the chapter on women and I have been writing about women and law ever since. The issue of flexibility is the one that exercises women in the profession more than probably any other. It is the reason why women's careers look different-they are the people who have children and who are the primary carers.
Increasingly, women now at the Bar, perhaps unlike those of previous generations, have a different way of wanting to deal with their role as mothers. Their children are not going off to boarding school in their primary school years, they are not away from home, they are still living with their parents and there is therefore the issue of who is the primary carer. Still, I am afraid, it usually falls to women, so I am grateful to the noble Baroness, Lady Jay, and the noble Lord, Lord Pannick, for emphasising that this is about flexibility. I regret that the words "part-time" are used. Can we find a way of reformulating this so that it is about flexibility?
I am concerned that often the ways of doing things are still championed by those who have gone through the system and come out at the other end-and I say that respectfully to those who are now retired as judges. We have to be capable of changing to deal with a changed world and the changed aspirations not just of women in the profession, but also sometimes of men in the profession and of the general public, if we want to see our judiciary change in its appearance.
It is right that we are talking first about the High Court. Currently, judges go out on circuit. It is a problem, and I do not know how to square this circle, because I think it is important that judges go out on circuit to try, for example, big criminal cases. It still matters because there is something wrong with the idea that there is a local High Court judge to deal with these things-local circuits can become too cosy and it is sometimes better that someone from outside comes in to try big, difficult cases in which a lot of public outrage might be involved. It deals with the question of whether there is too much cosiness or familiarity when the same judges are always trying the same cases.
I want to pick up the comments of my noble friend Lord Pannick. When it comes to the Court of Appeal and the Supreme Court, it is very rare that women still have very young children, but it must be possible for there to be flexibility when our children are adolescents, when they are taking exams or having time out of school. It must be possible to make arrangements so that judges can have time to deal with such domestic issues. It became an embarrassment even to raise those things at one time, but it is now possible and sets of chambers accommodate those men and women who want to have time for their families-that is how the working world has to be.
When it comes to the Supreme Court, of course it is right that at the moment, by and large, those who go to sit on the Supreme Court will be about 60-that is the sort of age we are looking at-but, as the noble Lord, Lord Pannick, said, sometimes a woman of 60 is the mother of adolescent children taking exams and going through important parts of their growing lives. It should be possible to find ways of accommodating that. There is something wrong with a system when, of 25 people consulted on the recent appointments to the Supreme Court, 24 were men. Is it any wonder that we only have one woman on that court? I can say emphatically that there are women who could have taken up those new appointments, but who were not considered. I hear retired judges, and even sitting judges, saying, "We only want the best". Of course, we only want the best, but I want us to open up what those ideas of "the best" are. Sometimes they are defined by men who have no idea about the contribution that highly intelligent women of a different experience might bring to those senior courts. That is why it is not good enough to stick with the old system. We have to embrace change if we want to see a different kind of judiciary. We should see the Bench as a whole, and not replicate the same people with those cut from the same cloth. I strongly endorse the efforts to change the arrangements and so am against the amendment of the noble and learned Lord, Lord Lloyd.
Could I ask the noble Baroness a question? Much of what she said dealt with flexibility. I think that everybody in the House is in favour of maximum flexibility, both at the High Court level and above where it is possible. The real question is whether flexibility demands part-time judges. The view of some of us is that it does not.
If I may respond to the noble and learned Lord, it seems to me that it has to be one of the possibilities in the whole panoply open to those making appointments. I do not imagine that it would happen very often but it might be that someone exceptional could be appointed who would say, "I will sit during these parts of the year and will be available to you then". I do not believe that that would bring about resentment from other colleagues once they saw the quality of the work done by people of real ability.
Much of what I had wanted to say has been said by others, notably by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Kennedy and Lady Jay. I chaired the Advisory Panel on Judicial Diversity and we took a great deal of evidence from both men and women who were either judges or interested in becoming judges. Of the many components needed to create a more diverse judiciary, flexible working was pretty near the top of the list. It was near the top of the list for people in their late 50s and in their 60s, who were not on the whole talking about looking after children-although, like the noble and learned Baroness, Lady Butler-Sloss, I think one ends up worrying about one's children for ever-but about caring for elderly parents.
Increasingly, because we are living longer, people in their 60s are caring for parents in their 80s and 90s. It is likely that people who are going to work as much as they possibly can in their 60s may still need to work more flexibly than was hitherto the case because they need to look after, or make sure that somebody else is looking after elderly parents. That point was made to me almost as much by men as by women and almost as much by solicitors as by people who came from the Bar. We must make provision for flexible working given the way that our population is ageing and that we are likely to look after parents in our 60s and 70s.
Therefore, the need to be more creative and flexible in how we think about these issues has never been greater. That was felt very strongly by people from whom we took evidence. Those people, including some members of the present High Court, also said that to them flexible working was not about working two days one week and three days the next, but about working possibly for nine or 10 months of the year and simply taking slightly more holiday than other people. That holiday, which would in fact be to allow them to carry out their responsibilities, would simply have to be factored into the system. Sending out a message to the wider world that we are not prepared to consider flexible working for the judiciary when we consider it for every other profession in the country would look very strange indeed.
I suggest that the debate on Amendment 115 be adjourned and that the Committee does not resume again before 8.20 pm.
My Lords, I apologise for not having spoken at Second Reading. I am sorry that the noble Baroness, Lady Kennedy, is not in her place. She would have appreciated that I was probably not able to speak at that stage of the Bill because I am a 50-something mother of an adolescent child who, in her words, was probably too busy supervising the child's exam-taking. For the purpose of declaring an interest, I should also say that I am a member of the Constitution Committee, but I was not involved in the report on judicial appointments. However, I was involved in the Constitution Committee's report on this Bill.
I want to pick up a few points that have been made. As I have already said, the framing of the debate is rather narrow. The past hour or so has involved a discussion of women serving as judges of the Supreme Court or the Court of Appeal. I want to inject a little pluralism into the debate about diversity by suggesting that there are other groups that are also affected by this: all the protected groups, people with disabilities, people from lesbian, gay and transgender backgrounds, but, particularly, people from ethnic minorities.
I think it was implied at some point in the debate that the clauses for flexible working would probably not be taken up by black and minority-ethnic community people, particularly men from that community, because at the age at which these jobs would be open to them, they would have no use for them. As a woman from that community, I have made it my life's mission to ensure that men from black and minority-ethnic communities take caring responsibilities for their children and their parents-in other words, be new men-and I do not intend to give up now. I do not see why that category of men or women would not be better served by provisions for flexible working. I would not distinguish them, and I would certainly not set them apart from women who might, or might not, have children.
I think it was also implied that the Supreme Court has a heavy responsibility for maintaining the high reputation that the Appellate Committee of the House of Lords built up over decades-probably centuries-and whose decisions were treated with the greatest respect. I completely agree with noble and learned Lords and noble Lords who have spoken in this debate that that is the case. I did quite a lot of work on the Latimer House principles for the Commonwealth which involved agreeing a balance on the principles of accountability and the separation of powers between the judiciary, the Executive and the legislature. It is absolutely true that the Supreme Court of the United Kingdom is held in extraordinary esteem certainly by 54 Commonwealth countries and beyond those shores, but I do not accept the implication of the debate that, because it is held in such high esteem and such great respect, if it were to move to a more flexible pattern of working, let us say, with the inclusion of perhaps more women or more ethnic minorities, that would inevitably diminish the quality and standard of the judgments it handed down.
It was also implied that this was gesture politics and that there would be no realistic possibility of any candidate capable of being so appointed to be able to do it or even want to do it. My answer to the critics of these proposals is that that may well be true. I have no evidence to show that it might work either way. But we know that the past has not delivered the diversity that we want, so perhaps changing this may well do so. Let us try it and see.
It is said that full-time judges would be left in a position where they would be trying the heavier cases-in other words that they would have a disproportionate burden put upon them by those who had a need occasionally to work flexibly, and that colleagues would resent this. Before I came into this House I worked in senior positions where successive employers granted me flexible working conditions in pretty full-on jobs. Most people who work flexible hours-there is evidence for this and I will get it for Report stage as I did not know the debate would go this way-tend to overcompensate for the fact that they are putting a burden on others and they therefore tend to work longer hours, be it on a Saturday or Sunday at home or elsewhere, in order not to allow an illusion to develop that they are not pulling their weight.
We have been debating in this House and will debate in the future options for increasing the targets of women serving on boards in the corporate world. As the noble Baronesses, Lady Neuberger and Lady Jay of Paddington, said, in the medical profession we have ample evidence of how difficult it was to convince people of this change, how well it works, and so on. In all other senior positions diversity has been found to add to decision-making and, if not positively to add to it, certainly to create a more plural set of inputs into decision-making. So it is extraordinary that for one category of professionals, some of the most esteemed professionals in the land, there is a question about having a change to slightly more flexible working. That does not mean, as many noble Lords have inferred, that the subject individual would say "I will not work on Mondays and Tuesdays, irrespective of what comes my way". That is not the meaning of flexible working and that is not the meaning of part-time working either, if we are being pedantic about words in the Bill. The meaning of part-time or flexible working is that people recognise or 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. The people who make it into those positions are usually dedicated to fulfilling the task that they are appointed to do in the best manner that they are capable of. That is the basis on which this clause should be debated.
My Lords, I rise to speak on the important matter of improving the diversity of our judiciary. I start with an apology that a previous engagement elsewhere in Parliament meant that I was unable to attend and speak at Second Reading.
I oppose Amendments 115 and 120 and want to speak in support of the proposals put forward by the Government, specifically to the elements in Schedule 12(2)(3) on the appointment to increase diversity, assuming that all candidates are of equal merit. I refer to the excellent reports by the noble Baronesses, Lady Neuberger and Lady Jay of Paddington, and their committees. Both reports make the demand for change absolutely essential.
Prior to addressing that, I will briefly take up the point on which much of the previous debate focused-part-time and flexible working. I regret somewhat that, with a couple of noble exceptions, the assumption has been that flexible working would only ever be accessible to or needed by women. That is absolutely not the case. One of the real benefits would be that male judges would feel that it was appropriate for them to take advantage of that as well.
Twenty years ago I was bursar of Lucy Cavendish College, which had the honour of hosting the Law Society summer schools for women. They tried to give women the tools they needed to achieve the promotions that they deserved. It may have taken 10 to 15 years to see real change in the senior members of the solicitor profession. We need to see that elsewhere. Clear action by the Law Society to support those young women in their aims had a significant benefit.
Much of the debate this evening has focused on the practical arrangements. Frankly, many other sectors have been resistant to change and have argued the same points that we have heard this evening. Perhaps we need to remember that the statistics demonstrate the problem of diversity in the judiciary. Unfortunately, encouragement from the sidelines alone has not improved it. Firm but careful steps need to be taken to protect the absolute principle of appointment by merit, while making sure that those from underrepresented groups-not just women-are given a full opportunity if all other skills and competencies are equal. The equal merit provisions safeguard the quality of members of the judiciary and ensure that no woman or black, Asian or minority ethnic judge feels that they have been appointed as a token gesture. This is vital.
Figures published only last week demonstrate why this measure is needed. Prospective women circuit judges for heavyweight crimes made up one-fifth of eligible candidates, but this was reduced to 14% of applications and an even smaller number of 8% were recommended for appointment. That is, nearly half of those recommended for interview were not recommended for appointment. The news of appointments for women during the year has been rather better, which is good, but there is still a long way to go. I understand that part of that issue relates to the number of women in the family courts.
The position for those from BAME groups was also mixed. Their appointment to tribunals was good, but not to higher salaried positions. No one from a BAME background who applied to be a deputy judge of the Upper Tribunal-the Immigration and Asylum Chamber-in 2011 was appointed. The figure for recorders showed a substantial rejection of BAME candidates, with 13% at application but 8% appointed.
There is a tendency in human nature to appoint those who look and feel like us. This is the main reason why women have often found it difficult to break through the glass ceiling in traditional areas. With women making up just over 50% of the population, the problem can be very visible. However, other underrepresented groups face the same problem and may not have the advantage of visibility if they represent an even smaller part of the population. My noble friend Lady Falkner of Margravine has already referred to them. Herein lies the problem. Those who do not want even these moderate steps argue, "Trust us. We will always appoint the best, and the best women and BAME candidates will come through". However, the best may not look or feel like us, and might therefore be excluded at an earlier stage, possibly even in the figures that I outlined earlier.
Last week, the former President Jimmy Carter was honoured by the Just the Beginning Foundation in Atlanta for his bold step in appointing 57 minority and 41 women judges in the late 1970s. These included federal and Supreme Court appointments. Nathaniel Jones, who was appointed by Carter to a federal appeals court position, said:
"President Carter, by virtue of his core values, had a capacity to identify wrong and a capacity and the courage to correct it".
He later added:
"You have given justice, American justice, a good name around the world".
Carter, typically modest, replied:
"The credit doesn't go to me ... It goes to the performance of the people I was honored to appoint".
I cite that example because, in addition to the excellent performance of these candidates, the American system became more flexible as a result. It is fair to say that the American way of affirmative action is not ours, but this example serves to prove that quality does not need to be compromised by providing support for candidates who otherwise would find it difficult to be appointed, because they did not look like those who came before.
In Canada, there has been a similar process in which the Commission for Federal Judicial Affairs passes the names of applicants on to advisory committees who are then charged with respecting diversity when making their recommendations-a process not dissimilar to ours. Ontario has the Judicial Appointments Advisory Committee, which is responsible for contacting individuals from underrepresented groups who might want to apply for judicial posts. This has seen a significant improvement in the number of women in the Canadian system. Unfortunately, only two out of 100 recent appointments were not white. The Canadian system can be described by ethnic minorities as opaque and this is much exercising the Canadian press at the moment-indeed just last week.
I believe that the measures that the Government propose in this Bill provide a mechanism that ensures merit and excellent quality, while ensuring that the appointment of underrepresented groups improves, so that our judiciary begins to look like the nation. We have heard that call for our legislature as well, where we are still working at improving the diversity of both these Houses of Parliament.
My Lords, my understanding is that we are debating the part-time provisions relating to the High Court, Court of Appeal and the Supreme Court. I understood that the noble and learned Lord, Lord Lloyd, said that it might be sensible then to deal with the other amendments in this group. I have in mind in particular the tie break provision amendment and my amendment about whether or not the Lord Chancellor should remain involved in appointing circuit judges. As I understand it, what was envisaged was that the noble Lord, Lord McNally, would reply on the part-time issues, then, without going on to another group, we would move on to the tie break and maybe the other amendment as well. Although the noble Baroness, Lady Brinton, has dealt with the tie break, at this stage I will restrict my remarks to the part-time issue, following the lead of the noble and learned Lord, Lord Lloyd. I would envisage that the noble and learned Lord, Lord Lloyd, would open the debate on the tie break as well.
We had better get this straight from the start. The noble and learned Lord, Lord Lloyd, said that he wanted to move Amendment 120. He did not mention the amendment of the noble and learned Lord, Lord Falconer. I will take advice from the clerk, but if we are discussing only Amendment 115, whether Clause 18 should stand part of the Bill and, presumably, Amendment 116, then in normal circumstances we would go on to Amendment 117, not Amendment 120.
Our problem is that if I talk about the tie break, it is before the noble and learned Lord, Lord Lloyd, has made his points about why the tie break is wrong. The natural sequence of events is that I speak, then the Minister, we do not put a question but go round again, which is perfectly okay in Committee. If everybody is happy, that is the right course that I would envisage. A preliminary point: initially, I thought the noble Lord, Lord Goodhart's, point was that the Constitutional Reform Act 2005 was such an important Act that it could never be amended. I tended to agree with that proposition. As I understand it, and I agree with this, he then went on to say that when a Bill makes a significant constitutional change, it is wrong to put it in the form of a schedule introduced by a section which does not, as it were, preview that it is a major constitutional change. The right way to make major constitutional changes, so that this House-which has a special responsibility in relation to constitutional changes-is aware of what is going on, is by an individual Act of Parliament.
I agree with the noble Lord, Lord Goodhart, in relation to this because here we are dealing with an important constitutional issue as regards the position of judges. Like the noble Lord, who is a practical and sensible Member of this House, I fear that we are where we are. We are in Committee and it is obvious that we will pass something along the lines of Clause 18 and Schedule 12. Therefore, it is necessary for us to debate the merits of those. But it is extremely important that the Government recognise that where one is dealing with important constitutional issues, it does not in any way inhibit any programme of constitutional change, it just means it is right that it is properly flagged up so that we know where we are.
I support the noble Lord, Lord Goodhart, in what he says but, as a matter of practicality, I recognise that we have to move on. The noble Lord, Lord McNally, is much loved around the House and a genuine supporter of sensible constitutional change. He was a significant supporter of the Constitutional Reform Bill in that he allowed it to go through in circumstances where it might not otherwise have gone through, so I have a particular personal reason for believing that the noble Lord is a supporter of constitutional change. It would be worth while if he could say something in response to the noble Lord, Lord Goodhart.
We are dealing with three tiers of part-time judge: first, the High Court of England and Wales; secondly, the Court of Appeal of England and Wales; and, thirdly, the Supreme Court, which is part of the UK judiciary. The average age at which persons are appointed to the High Court of England and Wales is between 45 and about 60. In the Chamber tonight, we have two former High Court judges. The noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Woolf, were both appointed at the age of 45, which is at the youngest end of the range.
In appointing women between the ages of 45 and 50, it is extremely likely that they will have caring arrangements. I know that from my own experience as someone at the English Bar and as someone appointing judges. The difficulty for people is in making a choice as to what they put as their priority. As the noble and learned Baroness, Lady Butler-Sloss, rightly said, the current attitude is that it is "full on" if you join the High Court and there are no dilutions. The consequence of that in relation to the High Court is that a significant pool of people who would otherwise be willing to be appointed is being lost. I know that from my own experience in appointing judges.
Perhaps the noble and learned Lord will forgive me for making this point. I am sure that his experience was similar to mine. Where a case was made by an applicant who needed special assistance because of personal circumstances, the system that we have had has always been flexible enough to allow us to make those special arrangements and they worked satisfactorily. We should acknowledge that and I suspect that the noble and learned Lord will endorse what I have said. If I have understood him correctly, he was indicating the contrary, although I am sure that he did not mean to.
I accept what the noble and learned Lord says and perhaps I may say that no one was more willing than he-his successor, the noble and learned Lord, Lord Judge, was the same-to accommodate people as much as possible. So in answer to the point of the noble Lord, Lord Thomas of Gresford, if it was difficult for individual High Court judges to go on circuit then the Lord Chief Justice, in my experience, was always reasonable and understood the difficulties. However, there were limits. The main one was that you would not agree to have as a High Court judge somebody who wanted to have half term and school holidays off. As the noble Baroness, Lady Falkner of Margravine, said, we are not talking about working Mondays and Wednesdays but about whether someone could work for a period but have the children's school holidays off. There is currently a situation where a High Court judge gets three months off. Is it that much more different to say that school holidays could be taken off as well? That sort of flexibility would open the door to a group of people who currently would not feel able to accept appointment as a High Court judge.
The noble and learned Baroness, Lady Butler-Sloss, asked broadly why we do not do that at the lower judicial level. Absolutely not. Why should somebody who is 45 and has the quality to be a High Court judge be offered a part-time job only in a position that is essentially inferior to the one that they would otherwise merit? The noble and learned Baroness, Lady Butler-Sloss, then argued, and had some support from the noble and learned Lord, Lord Carswell, that it is very difficult if you have some part-timers to deal with cases that last for nine months. Again, with the greatest of respect to the noble and learned Baroness, who was equally a champion of diversity, there are a handful of those long cases. The idea that there would be resentment because a number of judges would be willing to do them and others would not is, in my experience, fanciful. With respect to the noble and learned Baroness, I reject that argument. I strongly support the Minister's proposal in relation to part-time judges for the High Court Bench because it improves and increases merit. It opens and widens the pool. It has no effect whatever on merit. I am strongly in favour of it.
The noble and learned Lord, Lord Lloyd of Berwick, said it was okay for the circuit Bench but not for the High Court Bench. Again there is no logic and no ultimate justification for that position. We should, as a Committee, endorse the proposal because it indicates that we understand the pressures on successful professional people. We should not say that the High Court Bench-unlike being a consultant doctor, a successful barrister, solicitor, or architect-is the only place where we will not be willing to allow that sort of flexible working. I am sorry that she is not in her place but the noble Baroness, Lady Kennedy of The Shaws, was right when she that it is about flexible working. Part time, as a piece of language, may be a slightly misleading suggestion. I strongly support the proposition for the High Court Bench.
The next tier is the Court of Appeal. I have indicated that the range of ages at which people are appointed to the Court of Appeal is between 45 and 60. Although there is no pattern, one could reasonably expect to go to the Court of Appeal after between six and 12 years at the High Court so we are talking about people in their early 50s, although there are some exceptions. I am quite sure that the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, were in the Court of Appeal in their late 30s, but normally early 50s is the sort of range, although there are some people who go later. Think about what your responsibilities were when you were in your early 50s in relation to looking after children. Again, I know of people in the current Court of Appeal who have adolescent children and some with children under 12. What is more, as the noble and learned Baroness and the noble and learned Lord will testify, some of them live outside London. So in addition to the problem of having caring responsibilities for children, they have to travel from far away, which puts increased pressure on them.
Should people have the option of saying that they would like to go to the Court of Appeal but would like to do it when there are school holidays or on some other part-time basis? It is said by the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Carswell, that this would cause great difficulty because there are long cases in the Court of Appeal. I completely agree with what the noble Lord, Lord Pannick, says. My experience with cases in the Court of Appeal is that they do not tend to last more than three days. I know from my own experience of a case that lasted two weeks in the Court of Appeal, but I imagine that that would be regarded as unusual. I cannot think of any other profession where it is said that two weeks cannot be accommodated for somebody who works flexible hours. So with the greatest of respect to the noble and learned Baroness and the noble and learned Lord, Lord Carswell, I would say that the idea that it will cause difficulties in the Court of Appeal is not right.
Finally, on the Supreme Court, the noble and learned Lord, Lord Lloyd of Berwick, started off by saying that there was no Supreme Court with part timers. First, there is the House of Lords, which has many part timers. The Lord Chancellor was a part timer as a Member of the House of Lords. It was also the norm for retired members to sit on the Judicial Committee the House of Lords, and indeed for retired members of the Supreme Court to sit in the Supreme Court. So the idea that the Supreme Court cannot deal with the arrangements of part timers is, with the greatest respect, wrong.
Secondly, in relation to the length of cases dealt with in the Supreme Court, my experience of cases in the House of Lords and in the Supreme Court is that they tend to be shorter even than cases in the Court of Appeal. There was one case that lasted over a week in the past few years, which was the Belmarsh appeal, but that was a very exceptional appeal. So in arrangement terms there would be no difficulty in having people in the Supreme Court who were part time.
The noble and learned Lord, Lord Lloyd, went on to another point. The proposal would make absolutely no difference, he said, because there is nobody whom he can envisage would be worthy of appointment who would want to be part time. First of all, we are talking about this being permissive, not compulsory. Secondly, how many people have caring responsibilities for elderly parents? I was describing earlier the fact that, when I sought to appoint one High Court judge, she told me that she could not take the appointment because she had responsibilities for her own elderly mother and the mother of her husband as well. How many people would want to be in the Supreme Court and would be capable of being there but have other responsibilities? I do not know-but I look around the world and I see part-time Supreme Court members, such as the noble and learned Lord, Lord Woolf of Barnes, in relation to the Court of Final Appeal in Hong Kong, or Sydney Kentridge in the Supreme Court of South Africa. Have those courts benefited from those part-time members? My answer is yes.
So if we were to agree to a provision that allowed part-time or flexible working members of the Supreme Court in the United Kingdom, there would be two benefits. First, it would increase the pool of people who would be able to apply. Secondly, it would lead to a sense that we thought that flexible working was available from the top to the bottom of our judicial system. I cannot think of a better message for us to send-and it would be one that was not just a gesture but would have an effect on increasing merit. So I and these Benches enthusiastically endorse the brave and sensible proposal that the Government have made in relation to part-time working in the Supreme Court, the Court of Appeal and the High Court.
My Lords, I feel like sitting down. The noble and learned Lord, Lord Falconer, was quite right; when he was Lord Chancellor and put through his constitutional reforms the Liberal Democrat Benches gave him full and consistent support. The brain power behind that support was my noble friend Lord Goodhart. I was the political organiser. As the noble Lord, Lord McAvoy, will attest, the triumph of ideals must be organised, so I share the pleasure in these reforms. I also think it is right-we will have lots of discussion about this-that the reforms, good as they were and are, are capable of being tweaked and improved in the light of experience. Therefore, I am grateful to the noble and learned Lords, Lord Lloyd and Lord Falconer, for setting the parameters of the debate, as it were.
Before I go into the detail, I wish to deal with the general point raised by my noble friend Lord Goodhart. I understand where he is coming from and the need to acknowledge the importance of constitutional reform. However, as the noble and learned Lord, Lord Falconer, found from his own experience, the difficulty is getting parliamentary time to tackle this. You sometimes have to accept the necessity of putting very important issues into a broader based Bill. The Government are always faced with the dilemma-this is true of all Governments-of choosing whether to put provisions together in one Bill, as is the case here, or of delaying legislation on important and necessary reforms. We have chosen the former approach but the fact that these provisions are in Clause 18 and Schedule 12 does not for a moment diminish their importance. Wherever they sit in the Bill, I would expect your Lordships' House to discharge its usual role in carefully scrutinising the Government's legislative proposals. If there was any doubt about that, it should have been dismissed by the thorough way in which the House has filleted these proposals for two and a half hours this evening.
I turn to the merits of our reforms to the judicial appointments process and answer the concerns raised by the noble and learned Lord, Lord Lloyd. His amendments would delete from the Bill the key measures to promote diversity and flexible working in the Supreme Court. As the noble and learned Lord, Lord Falconer, said, "flexible" is the right word, not "part time". Of course, we must ensure that the process through which our judges are appointed is fair, open and transparent. The longer I am in this job, the more I am in awe of the quality of our senior judiciary. They are a national asset and are respected throughout the world for their quality and independence, as the noble and learned Lord, Lord Falconer, said. However, this does not conflict with a requirement for greater diversity in the judiciary. Diversity in the judiciary is important to enhance public confidence in the justice system. The proportion of women and members of ethnic minorities is still too low, and this is particularly the case in the higher courts.
As the noble Lord, Lord Pannick, pointed out, progress in increasing diversity in the judiciary has been woeful and inadequate. We do not believe that we can rely on trickle-up. We consider that allowing flexible working in senior courts is an important reform to increase diversity, and that it will not detract from the principle of appointment on merit. I was recently asked by a very senior member of the judiciary, "Will our judiciary still be held in the same high esteem in 20 years' time as it is today, if your reforms go through?". I could look him in the eye and say "Yes, I believe that it will, but it will be a more diverse judiciary".
The arguments made by the noble and learned Lords, Lord Lloyd and Lord Carswell, and by the noble and learned Baroness, Lady Butler-Sloss, is that flexible working in the Supreme Court is simply not practical, and that all judges of the Supreme Court need to shoulder their fair share of the business by sitting full-time. I simply do not accept these arguments. It is a judgment call, but we have no reason to believe that it cannot work to the benefit of flexibility and diversity. Regarding the virtuoso performance by the noble and learned Lord, Lord Falconer, I can see how he earned an honest crust at that game. However, the noble and learned Lord made a good point. Flexible working will not be compulsory but will provide flexibility and, as has been pointed out by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Pannick, the merit test would still be there. It is not a dilution but a move to greater flexibility, which we believe will allow for greater diversity.
Many of the arguments we have heard from the sponsors of this amendment reflect an outdated view of the family. As the noble Baroness, Lady Kennedy, explained so eloquently, we need flexible working not just to enable a woman in her 30s or 40s to balance her career with her caring responsibilities, but to enable women in their 60s to carry out caring responsibilities for teenage children. Equally, such caring responsibilities can extend to grandchildren, a disabled partner or elderly parents. As my noble friend Lady Falkner pointed out, we are not just talking about women but about ethnic minorities, and some of this flexibility will also apply to men who find the present system too rigid.
We need to allow men and women of all ages to meet such caring responsibilities and balance them with flexible working patterns. The noble Baroness, Lady Jay, and others noted that such arguments were put forward in the past to oppose the introduction of flexible working in other professions. It has been shown in the medical profession and elsewhere that flexible working arrangements can be readily accommodated. As I have said in this House previously, if anybody asks me what is the biggest difference I have seen, having worked in the Foreign Office and Downing Street in the 1970s and come back to Whitehall now in 2010 to 2012, I would say that it is in the diversity of senior advisers. If our Civil Service can achieve such diversity, why can the law not achieve it?
That is not to say that there will not be challenges in implementing this, and practical issues to work through in, for example, the listing of cases. However, we agree with the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, that these issues are not insurmountable. As he has indicated, most cases in the Supreme Court require hearings of only two or three days. As has been discussed, flexible working can take many forms, such as working during term times, or for nine or 10 months of the year, as the noble Baroness, Lady Neuberger, highlighted. Can I again pay tribute to her committee, which has not simply produced a report, but has kept on the case in terms of chivvying me and the Lord Chancellor in these areas? Moreover, if we are allowing flexible working in the lower courts, including the High Court and the Court of Appeal, the absence of flexible working in the Supreme Court could potentially deny an outstanding Court of Appeal judge the ability to consider applying for the Supreme Court.
I hope that the debate has, in a way, answered the concerns of my noble friend Lord Goodhart. These are important issues that are not to be taken lightly. I do not think that the House has taken them lightly but the case against the Government's proposals has not been made-in fact, quite the contrary. The balance of the debate has been on our side.
Before the noble Lord sits down, perhaps I should mention the position of the noble and learned Lord, Lord Carswell. He did not want to absent himself from the later parts of the debate, but he had to return to Northern Ireland and has sent his apologies. I said that I would convey them to the House.
Hansard will note that, with the full understanding of the Committee.
My Lords, I will be brief because I do not intend to divide the Committee. I am grateful to the Minister for his reply.
The noble Baroness, Lady Jay, was quite right to refer to the Lord Chief Justice's evidence to her Constitution Committee. However, the point he was surely making was that there is already a great deal of flexibility in the High Court. That point was also made by the noble Baroness, Lady Falkner, during my speech. Indeed, it was made very recently by the noble and learned Lord, Lord Woolf. For example, if a judge is unable to go on circuit for family reasons or any other reason, he or she will of course stay in London and other arrangements will be made. That is already happening in the High Court. I say "he or she" because flexibility applies to both sexes; it applies to men as it applies to women. The thought seems to have been that somehow flexibility will help only women. That is not the case; it helps men also.
The noble Baroness, Lady Kennedy of The Shaws, also made a strong point on the importance of flexibility-as did the noble Baroness, Lady Neuberger. The truth is that we are all in favour of greater flexibility, just as we are all in favour of greater diversity. However, greater flexibility does not require the appointment of part-time judges. That is what this debate is not about. It is about whether part-time judges should be appointed not in order to give greater flexibility but to solve the never-ending problem of diversity-how to get more women into the higher courts. When the Minister said in his reply that flexibility and diversity for men and women were all one thing, he missed the whole point of this part of the Bill, which is intended to increase the number of women in the higher courts. All that I can say is that it will do no such thing.
I greatly appreciate the noble and learned Lord giving way. I again ask him to clarify whether he accepts that diversity encompasses more than just gender. It encompasses several strands, including disability, sexual orientation, ethnic minorities and so on. The Bill nowhere states that it is intended only to increase the number of women. It speaks in terms of diversity.
I could not agree more; of course we are not talking about women but about, above all in this context, black and ethnic minority judges, as I made clear when moving the amendment. As the noble Baroness made clear, we are also talking about other forms of minority, including people with disabilities, for example. However, the whole thrust of this part of the Bill is intended, as one can see from the history, to get more women, as well as ethnic minority judges, into the High Court.
I will not say any more about those who have supported the amendment, except to emphasise the extremely effective point that the noble and learned Lord, Lord Carswell, made regarding the collegiality of the Supreme Court. I certainly had a sense of that when I was in the Supreme Court, and I also felt it throughout my time in the Court of Appeal, although one obviously does not have that sense as a High Court judge. We were all members of one court. I do not think anyone can tell what the effect of the appointment of part-time judges will be on that essential concept of collegiality in both those courts.
I should mention the point made by the noble and learned Lord, Lord Woolf. He was unable to imagine a woman who would be willing to accept part-time appointment to the House of Lords but not full-time appointment. The question comes back to this: if that is the case, the purpose of this part of the Bill is not to cure the problem of diversity. Instead, the purpose is to send out what the noble and learned Lord called a signal; a gesture. I am opposed to gesture legislation, which is what this amounts to. It will not make any difference in practice. Having said that, I beg leave to withdraw the amendment.
I am very grateful to the noble Earl. I will defer begging leave to withdraw the amendment until I have moved the other amendment.
My Lords, the noble and learned Lord can speak to his other amendment if he wants. He cannot move it, but he can speak to it now.
My Lords, the second amendment in my name and the names of the noble and learned Lords, Lord Carswell and Lord Woolf, is concerned only with diversity. It affects the judiciary at all levels. The amendment would leave out line 27 of Clause 18 and Part 2 of Schedule 12.
The Government accept that judicial appointments must be solely on merit. However, the Government argue that there might be cases where two candidates were of exactly equal merit, like two candidates getting the same marks in an examination, in which case the woman or the black man should be preferred. At least, that is the idea. "Solely on merit" is thus to be given a special meaning.
How is it going to work? Let us suppose there is a vacancy in the Supreme Court. The candidates will almost certainly come from the Court of Appeal. Let us suppose that there are two candidates from the Court of Appeal. Their abilities will be well known to the selection commission. The Bill provides that the selection commission shall consist of an odd number of members, not less than five. Is it conceivable, I ask, that all five members would find the two potential candidates of exactly equal merit? The answer is no. I suppose it is just possible that two members of the selection commission might favour one candidate, and two might favour the other, and the fifth member of the commission might be unable to make up his mind one way or the other, but this seems so unlikely in practice that it should not be the subject of legislation.
I am not alone in taking the view that I do. The noble Baroness, Lady Neuberger-who is still in her place, I hope-the noble Lord, Lord Phillips, and the Lord Chief Justice, all doubted whether candidates for the Supreme Court would ever be exactly equal. So did Christopher Stevens, the chairman of the Judicial Appointments Commission.
The idea that the Equality Act might be used where there are two candidates of exactly equal merit comes from a recommendation of the advisory panel in its 2010 report. As the noble and learned Lord, Lord Neuberger, will recall, it was recommendation 21. In a progress report of May 2011, the Judicial Appointments Commission said that it had always been able to distinguish between the relevant merits of different candidates, and that it did not anticipate that the Equality Act would ever be relevant in practice. Therefore I suggest that the idea should have been dropped then and there; it was nothing but an idea.
The members of the Judicial Appointments Commission operate in the real world. Part 2 of Schedule 12, which is based on the idea that one can have exactly equal candidates for these posts, is a good example of the sort of make-believe world in which Governments so often seem to exist.
That leaves only one argument. It is said that even though Part 2 of Schedule 12 would be useless in practice, it would send out a strong signal that diversity is of importance. This was the view of the Constitution Committee, stated in paragraph 101. It was also touched on by the noble and learned Lord, Lord Mackay, at Second Reading.
I do not believe that legislation should be used for the purpose of sending out signals. Moreover, in this context the signal is surely rather demeaning. We would be saying to highly intelligent women lawyers, "You may not have been the best but be of good cheer, you were first equal". If I were the first black judge to be appointed to the Supreme Court, I would want to know whether or not I had been the best candidate, as I would under the existing law. Under the new law, I would not know. If I was only equal first, surely I would want to know who the other candidate was-and no doubt the other candidate would want to know who I was. Moreover, if I were a black judge, what would happen if the other candidate were a woman? How would the equality principle apply in those circumstances? I have formed the view that the Equality Act is of no assistance in this context. Of course it is of great importance in many other fields, but in appointments to the Supreme Court and the Court of Appeal it is of no assistance at all: indeed, it could do nothing but harm in the manner that I suggested. I beg to move.
My Lords, the noble and learned Lord made a slight mistake. He did not beg to move; we can just carry on debating the amendments in this group.
My Lords, I will comment briefly on this point. In his closing remarks the noble and learned Lord, Lord Lloyd of Berwick, asked an interesting question that is posed frequently: where there is a tie-break, as I would refer to it, what should be done if there are two candidates of supposedly equal merit, one of whom is a woman and the other, for example, is from an ethic minority? I note that the report of the Constitution Committee gives a lot of assistance in how we should define merit but makes the point that, certainly in large-scale selection processes, there could conceivably be candidates who end up in a tie-break: in other words, who are assessed to be of equal merit.
It would be quite straightforward to apply the test in those circumstances. You would look to see which group is more underrepresented than the other group and, in the case where there are two from underrepresented groups, appoint the one that was not to be found there. That would be fairly straightforward. With more senior appointments, it is entirely conceivable that it would be much clearer. We have heard that there is one female and no ethnic minority member of the current Supreme Court. In that case, it would be fairly straightforward, if the candidates were tied and came out equally in an assessment, you would go for the ethnic minority candidate. Although you would want to increase the gender diversity, on such an occasion, you would need to increase the diversity overall.
I also make the point to the noble and learned Lord that blatantly nobody is seeking to have the senior judiciary reflect the people they serve, because the people they serve on the whole are there, particularly in criminal cases, because they have done wrong. Nobody is suggesting that. However, the Constitution Committee's report makes clear, as do a lot of other reports, that in senior positions in life it is terribly important for an inclusive society to have people who are representative of different strands of society as a whole. I rest my case there.
My Lords, I will just make one rather straightforward point. I think the noble and learned Lord, Lord Lloyd of Berwick, said in relation to the previous amendment that he felt that this was simply gesture politics and somehow the phrase that we used in our report, which the noble Baroness, Lady Falkner, has now repeated, about sending out "a strong signal" by adopting this part of the Equality Act was simply inappropriate in legislative terms. I only say that the experience that we heard, particularly from abroad, about the way in which change had been brought about in judicial systems in other countries-I would cite particularly Canada-was that it came from very strong leadership from the top. That may be either in practical terms or, quite importantly, in terms of what the noble and learned Lord, Lord Lloyd, if I may say so, refers to, in a slightly deprecating way, as gestures but which I regard as importantly symbolic of a change of attitude at the top. In these terms, that means both ministerial and judicial and therefore conveys what I hope would be a change that would percolate down through the system.
I speak from my experience of being engaged in judicial appointments as Lord Chancellor, which is not the same as that of the noble and learned Lord, that there is always somebody who is the best candidate. My experience of judicial appointments is that you are very often comparing people who came with completely different experiences and particular specialities, who are both aiming to fill the same position. You could have a solicitor who was very experienced in dealing with general litigation, widely admired for his wisdom and sense, and a criminal barrister widely admired for her advocacy skills. The idea that one was better than the other and that one should approach judicial appointments on the basis that one was trying to grade the candidates for an Oxford First as 1, 2, 3 and 4 was not remotely my experience.
I am always suspicious of people who advance arguments along the lines of, "I live in the real world". The real world involves making comparisons between people where it is essentially not possible, in any meaningful way, to grade them as 1, 2, 3 or 4. You will find that there are people applying for jobs who are of equal merit. That is the position, whether you are dealing with an appointment for one position or with a wider appointment, for example encouraging people to fill 15 posts as circuit judges-
Would the noble and learned Lord explain why his experience as Lord Chancellor is so very different from the experience of the Judicial Appointments Commission, which has said quite clearly that it has never found people to be of equal merit and does not anticipate that this clause will help in the future?
I do not know who the noble and learned Lord is referring to. If he is referring to Mr Christopher Stephens, I have had no conversations with him. All I can do is set out my own experience in relation to this.
My Lords, perhaps I may help the Committee, having been the inaugural chairman of the Judicial Appointments Commission. My experience is the one that the noble and learned Lord, Lord Falconer, has described. Let us take two candidates about whom we can say that, although no two people are equal, there is merit. People are assessed against the criteria that have been set out. There may be two candidates who could equally do the job. You then have to assess them against the criteria, and that is where choice and judgment comes in. It is how that choice and judgment is exercised which makes the decision. People may be of equal merit, but they may not necessarily be equal in the sense that has been described.
The noble Baroness, Lady Falkner, was right to say that this became easier when vacancy notices were sent out and we had to appoint a number of judges to the circuit Bench or the district Bench. There were some candidates who were clearly grade A and presented no difficulty, and there were others who were below the line. However, there was a lot of discussion about the people who were in the middle, and they were always assessed against the criteria. I sat on a number of appointments to the senior judiciary, and there were robust debates about merit. What this proposal does is focus the mind by saying that one of the considerations that has to be taken into account is this: what else would the candidate bring to the post? The description given by the noble and learned Lord, Lord Falconer, is absolutely accurate.
I am grateful to the noble Baroness, Lady Prashar, for explaining that our experiences are the same. One can test this simply by looking around the Chamber. If one had to make a choice between the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, I think that everyone would agree that they bring totally different characteristics to a particular job. Would we be able to say that one is better than the other? No, in my view they are of equal merit. This is a serious point.
If we assume that the argument is right, the question is then: is it open to the person appointing a judge-because this does not apply just to the Supreme Court, but from the top of the judicial system to the bottom-to say, for example, "We have one woman and 25 men in this job and we have before us people of equal merit. It might be sensible to increase the group with one more woman"? Apart from the judiciary, I cannot think of any other organisation in the world that would consider that to be a bad approach. It also involves moving on from an artificial approach that people have to be graded as number one and number two. I support the approach taken in the Bill and I do not support the approach of the noble and learned Lord, Lord Lloyd.
My Lords, again I am extremely grateful to the noble and learned Lord, Lord Falconer, for his contribution. I will not labour the point, but there is a difference of opinion. Most of the contributors to the debate do not believe that merit is something that can be pinpointed with laser-beam accuracy. That is not the real world, as both the noble Baroness, Lady Prashar, and the noble and learned Lord, Lord Falconer, have so vividly illustrated. I must also say that we must be very careful to ensure that collegiality does not morph into "chaps like us".
The Government believe that merit can be more holistic than the noble and learned Lord, Lord Lloyd, suggests, and I take the point of the noble Baroness, Lady Jay, exactly-this is not about gesture politics, this is about leadership, and I am very proud that the present Lord Chancellor is giving that leadership. I should also say, since the noble and learned Lord, Lord Lloyd, called in aid the Judicial Appointments Commission, that the commission chairman, Christopher Stephens, said on
"The JAC welcomes the Government's proposals. These include many very positive changes ... We also welcome the introduction of a specific provision to clarify that where two persons are of equal merit, the JAC can select the more diverse candidate".
So I do not accept that there is support there for this view. It is, as I say, much too narrow a view of what we are trying to do and I hope, just as I am often asked to listen to what the House has said on this matter and think again, that the noble and learned Lord, Lord Lloyd, will listen to the voices around the House and think again, because I think that he is on the wrong track on this. I am sure that after careful consideration, when we get back to Report, he will be an enthusiastic supporter of the Government.
Of course, having listened to the noble Lord, I am bound to think again and I shall. At this point all I will do is agree with the noble Baroness, Lady Falkner, that this question does not arise at the lower levels at all. At the lower levels there will usually be a large number of vacancies and a large number of applications, so there will be no question at all of putting candidates into any sort of order. However, it clearly does arise where one has one or two candidates from the Court of Appeal applying for the Supreme Court, or one or two candidates from the High Court applying for the Court of Appeal. At that level I say that there has never been any difficulty in choosing between them, so once again, this is a provision which will not help in practice.
To those who say the opposite, I shall read how the recommendation of this advisory panel was dealt with-it all comes from that recommendation. When that recommendation was considered, again, in 2011, the answer was as follows:
"The JAC will always select on merit and has to date been able to distinguish between the relevant merits of different candidates based on a careful assessment of an applicant's entire profile and background".
Certainly, background is taken into account as the noble Baroness, Lady Prashar, would stress.
My understanding is that the Judicial Appointments Commission does not appoint to the Court of Appeal and the Supreme Court. I understand that the noble and learned Lord, Lord Lloyd, is saying that there is no problem with this provision in relation to the appointments that they do make-so he appears to be disagreeing with Mr Stephens-and in relation to the area where he is disagreeing, that is not a matter for the Judicial Appointments Commission. So I am not quite clear what point he is making.
The point is whether it arises in practice that it is impossible for whoever is making the appointment to choose between two equal candidates. The noble and learned Lord, Lord Falconer, says he often had that difficulty. If that is a real difficulty, it is very surprising that the Judicial Appointments Commission, which has made innumerable appointments, has never found that difficulty in practice, and it says that it does not anticipate, therefore, that the provisions of the Equality Act will ever be relevant in practice, either at its level or at any other level.
Let me explain this by giving an analogy. When you make senior appointments, let us say to the High Court, you make a selection. It is like knowing that you want fruit: do you want apples, pears or whatever? That is the point at which you make a judgment. What the noble and learned Lord read from basically explains that you judge the candidate against those criteria. You will take all those considerations into account before making that selection. The distinction is that you will never get two equal candidates. As the noble and learned Lord, Lord Falconer, said, let us say that the noble Baronesses, Lady Jay and Lady Neuberger, applied. It would be a question of equal merit but against the background of what was needed you would go for one particular noble Baroness because they would match the merit criteria. I think that the confusion is that they are not absolutely equal but they are of equal merit.
I regret to say that the difficulty of that is that when one talks about equal merit one is in danger of infringing the very first requirement that all appointments must be made solely on merit and the view that has been expressed over and over again that that is not a threshold. That view was rejected by the Constitutional Commission, which said that it is wrong to regard merit as a threshold, which the noble Baroness appears to have done-and perhaps the noble Baroness, Lady Neuberger, too. It is not a threshold. You have to get the best person.
Can I make clear what the advisory panel said on this matter? We were quite clear that the principle of selection on individual merit remains. The point that we were trying to make is that that depends on how you define merit. Your definition of merit may not be identical with mine or with that of the noble Baroness, Lady Prashar. We have a way of dealing with merit. The Judicial Appointments Commission has merit criteria against which we measure. Those criteria have recently been changed in relation to some of the things that may help in these diversity questions. We said that where people were of equal merit and you could not distinguish to say that one was better than another, you could then use the tipping point. Some people have liked that and some have not. Since we now have the availability of that in legislation, all six of us-without being able to put a sheet of paper between us-agreed that that was the right way to go.
I am still replying to the debate and the debate is still going on but it is quite apparent that I will not persuade the noble Baronesses. In those circumstances, I beg leave to withdraw the amendment.
I am very grateful to my noble and learned friend for not withdrawing his amendment because it allows me to deal with the final set: Amendments 123A, 124A and 126A. I congratulate the Minister on the complicated group that he put together. None of us objected to it so we all are to blame for this particular procedural mess.
I think that this is the last thing we will deal with tonight. These amendments very respectfully question the wisdom of the Bill in replacing the Lord Chancellor with the Lord Chief Justice in relation to the appointment of a number of specified appointments. As noble Lords will recall, in relation to a number of specified judicial appointments, including circuit judges and recorders, the Judicial Appointments Commission makes recommendations to the Lord Chancellor and the Lord Chancellor can ask the Judicial Appointments Commission either to think again or to reject a particular appointment. If the Judicial Appointments Commission then comes back with another appointment, the Lord Chancellor is broadly obliged to accept it. We put together this type of arrangements because those of us involved in the Constitutional Reform Act 2005-I have in mind in particular the noble Lord, Lord Goodhart, and the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf-all believed that it was extremely important that the Executive remained involved in the appointment of important and significant judicial appointments.
What is in effect being legislated for now is that the Lord Chancellor, the Executive, should only remain involved-put aside the question of the Court of Appeal, the Supreme Court, the Lord Chief Justice and heads of division-only in the High Court. I suggest to the Minister that that is a big mistake. The reason that the Lord Chancellor was given the residual power is that he is able, as an external force to the Judicial Appointments Commission and to judges, to say, "Think again". The areas where the Lord Chancellor could say "think again" in a way that the Lord Chief Justice-the chief judge-might not be as willing to do might be, for example, in relation to diversity issues or to criteria adopted by the Judicial Appointments Commission.
I suspect that the main thinking behind this is that the Lord Chancellor is fed up with looking at lots of names of people to be appointed circuit judges. If that is the reason, it is a discreditable, bad reason for making the Lord Chief Justice, who does not have the resources that the Lord Chancellor has, look at them, and it removes the Lord Chancellor-the Executive-from the important position of appointing judges.
I ask the Minister to think again. This is an important issue. It reduces the stake of the Executive in the appointment of circuit judges, who are the major criminal judges in this country, and recorders, the major stepping stone from being a part-time judge to being a full-time judge. Those are the two most important appointments. To suggest that the Lord Chief Justice makes them adds nothing to the process. The pressures on the office now are huge. In my respectful submission, it is a big mistake to do that.
I have dealt with paragraph 27 about judges. Paragraphs 28 and 40, with which my other two amendments deal,are about replacing the Lord Chief Justice with the Senior President of Tribunals, who is basically a Court of Appeal judge. The Government are replacing the Lord Chancellor with a senior Court of Appeal judge in the context of senior appointments to the Tribunals Service. The Tribunals Service now covers a huge range of administrative matters and its judges are just as important in relation to involving the state as those other judicial appointments. I hope that the Minister thinks about removing the Executive from these roles and placing the burden on people who cannot carry it for administrative reasons. If one is serious about the Executive having an influence on criteria and diversity, this is the way it would be achieved. I invite the Minister to think about that.
Will the Minister bear in mind that it is very important that there is someone who can speak on behalf of the judiciary in Parliament? One of the changes that took place in consequence of the Constitutional Reform Act was that the right of the Lord Chief Justice, which had existed hitherto, to speak to Parliament on behalf of the judiciary on matters that affected the administration of justice went and we have this business of putting in a statement. That illustrates that the Lord Chancellor will be the spokesman who has to take parliamentary responsibility for the appointment of all judges. We know that sometimes it is very tempting for a Minister or even a very senior Minister to refer to unelected judges. It causes the judiciary grave offence that that should be said because judges may not be elected but they are appointed in accordance with the process laid down by Parliament and by Members of Parliament who, certainly in the other place, are elected. That responsibility means that Parliament is a place where in regard to these matters somebody has to be answerable. We do not want to see the Lord Chancellor no longer having responsibility for these appointments.
I have agreed with almost every word that the noble and learned Lord, Lord Falconer of Thoroton, has said this afternoon but I am now surprised at his explanation for why he wishes to move these amendments with respect to what I think he implied was an abrogation of responsibility by the Lord Chancellor for the judiciary. I wonder whether he is familiar with those parts of the Constitution Committee's report.
For other noble Lords who might not be, I will take just a minute or two to point that out. Looking at this part and pages 14 and 15, the Constitution Committee in taking its evidence found:
"This argument was supported by the previous Lord Chancellor, Jack Straw MP, who described his role in relation to the lower tiers of the judiciary as 'ridiculous'. The Lord Chief Justice, Lord Judge, also stressed that the Lord Chancellor 'has no input at all to make other than to be there to look as if he is making an input ... It simply suggests there is political involvement when we have tried to get rid of it'".
The committee goes on to make the point at paragraph 32 that,
"The Lord Chief Justice has day to day responsibility for the judiciary of England and Wales: he knows what is required of judicial office at all levels. He is therefore better placed than the Lord Chancellor to make an informed assessment of whether a nominee put forward by the JAC should be appointed. Transferring the Lord Chancellor's power to request reconsideration or reject nominations to the Lord Chief Justice would strengthen the appointments system".
In conclusion, the committee finds that,
"there is indeed a need for the legal framework for appointments to reflect both the extent to which the Executive should be involved in individual appointments and the reality of that involvement".
The committee makes one point which the noble and learned Lord, Lord Falconer, made, that,
"The Government should consider whether the Lord Chief Justice will need additional support in order to take on this role".
I think that point is well made.
The noble Baroness asked me whether I was aware of that. I most certainly was. With the greatest respect to the chair of the committee, my noble friend Baroness Jay of Paddington, it was wrong. It is such a misunderstanding of the importance of the role of the Executive. I admire the judges more than anyone but I do not want the judges to be completely in control of the process of appointment. It is a siren song to say "let the Lord Chief Justice do it". He is a splendid person but what a mistake it would be to remove the Executive and say "hold on minute, I am not sure that is right". Yes, I was aware and, my goodness me, she was led astray in what she said.
My Lords, it always surprises people that non-lawyers such as me sit through long periods of Bills such as this one. It is mainly because some of us think that no profession should be left to make its own decisions about its own set-up. Therefore, I hope the Committee will allow me to say just two things.
First, I entirely agree with the noble and learned Lord, Lord Falconer. It is necessary for the protection of judges that someone should make an interjection of this sort. Secondly, the noble and learned Lord who argued against the question of equal merit ought to learn a lesson from the rest of his life. I know perfectly well what I have to do when I choose people to work for me in my businesses. I often get a large number of people of similar merit. Then I get it down to people of equal merit. What do I say to myself? I say, "I can't run a business in which I have too many women and too few men. I can't run a business in which I have no gays. I can't run a business if I don't have some kind of different ethnic minority representation when I could". It is a very simple thing and I am a bit tired, if I may say so, of the legal profession talking as though it was a unique operation-as though it somehow has nothing to do with how the rest of us work.
That is why I sit through these debates from time to time-to say occasionally, "For goodness' sake, realise that you are in a world that operates in a particular way. When you talk about representation, it is about being sensible of and sensitive to the way the world works". I found the previous discussion bewildering. It is manifestly true that you often find people who are of equal but different merit. The issue then is about what mix works, given that you have 25 other people of equal but different merit. How do you fit that person in? Anybody who has chosen people for a team or run anything finds that to be true. I cannot understand why judges are supposed to be different or, in particular, why they become more different the more senior they become. I find that extremely odd.
Therefore, I ask the Committee to learn a lesson from those of us who are not lawyers. The nature of our legal system is accepted partly because people feel that, in general, the way in which it operates has some parallels with how everything else operates. If it operates in a totally different way, frankly, we have got it wrong. Let us try, in those areas where parallels are obvious, to make the system parallel. Where it is not parallel, we should be able to defend why it is unique. In neither of the cases that we have talked about in this curious group of amendments is it possible to claim uniqueness. In both cases, it is better to do what the noble and learned Lord, Lord Falconer, suggested, and to disagree with the well argued but fallacious point made by the noble and learned Lord, Lord Lloyd.
My Lords, I do not dare to follow what the noble Lord has just said. I want to make a slightly different point, which is to agree very much with the noble and learned Lords, Lord Falconer and Lord Woolf. There needs to be somebody in Parliament who speaks for the judges. That is probably the most important point that is being made and the major reason why the Lord Chief Justice should not have the final say.
My Lords, we should first thank the noble Lord, Lord Deben, for what in the film industry is called a cameo performance. It was none the worse for that. I am under strict instruction from the Box not to say anything rude about the judges, so I can take pleasure at one remove.
This is an interesting little debate. At this time of night, I am sure that the noble and learned Lord, Lord Falconer, will not press his amendment. However, I will take this back to the Lord Chancellor. If a former Lord Chancellor gives the kind of powerful warning that the noble and learned Lord has given this evening and is supported by people of experience, the least I can do is say, "They don't think this is such a good idea".
I would, however, say two things. Working with the present Lord Chancellor, I am absolutely convinced of his belief in the separation of powers. He is convinced of it, as am I and as is the noble and learned Lord, Lord Falconer, and he is very careful to try to ensure it.
The other thing I know from direct experience is that the Lord Chancellor is extremely robust in defending the independence of the judiciary and has reminded colleagues at the highest levels of government about the limits of criticising the judiciary. On those counts, we can be secure. The Lord Chancellor also retains overall responsibilities to answer to Parliament, which should not be underestimated. As the noble Baroness, Lady Falkner, pointed out from the report of the Constitution Committee, the evidence was that there is no real input from the Lord Chancellor on this tranche of appointments. Jack Straw said that and, in the robust language of the present Lord Chancellor, appearance and reality diverted where names were going past him that he did not know and he was supposed to give approval for. It was a paper exercise that he felt uncomfortable with. He felt that it was more sensible to give this responsibility to the Lord Chief Justice. I take the point, again made by the noble Baroness, Lady Falkner, about whether there are resource implications. Knowing the Lord Chief Justice, I suspect that he will call that in aid.
What the Bill provides is that for many judicial offices below the High Court, the Lord Chancellor's powers in relation to selection decisions and appointments are transferred to the Lord Chief Justice, for courts in England and Wales, and to the Senior President of Tribunals for appointments to the First-tier Tribunal and Upper Tribunal. Where the appointment is made by Her Majesty the Queen, the recommendation for appointment will still come from the Lord Chancellor, but he will merely transmit the decision taken by the Lord Chief Justice or the Senior President of Tribunals upon the selection of a person for office following a selection process carried out by the Judicial Appointments Commission. The Lord Chief Justice and Senior President will be constrained in the same way as the Lord Chancellor currently is, in that they will receive one name from the Judicial Appointments Commission and either have to accept the selection, reject it or ask the commission to reconsider its selection.
These amendments would undo that transfer of such responsibilities from the Lord Chancellor to the Lord Chief Justice and Senior President of Tribunals. While we consider that it is important for the Lord Chancellor to retain accountability and ownership of the judicial appointments process as a whole, and a direct role in appointments at a senior level, we do not consider that there is a need for the Executive to be involved in each individual appointment below the High Court. It is not practical for him to have knowledge of judicial officeholders at a more junior level and his role in the appointments process, at this level, becomes a rubber stamp. We therefore consider it appropriate that for many judicial offices below the level of the High Court, selection decisions and appointments are made by the senior judiciary, but that the Lord Chancellor retains accountability for the appointment system as a whole. This measure also received the support of the Constitution Committee in its report on judicial appointments. However, I will draw to the attention of the Lord Chancellor the fact that a former Lord Chancellor has spoken so strongly on the issue, and we will ponder what has been said in this debate tonight.
In taking that message to the Lord Chancellor, will the Minister also convey the message that, with great respect to the Lord Chief Justice, the Lord Chief Justice does not know all the people who will be appointed. He will know possibly a few more than the Lord Chancellor, but I suggest that just as the Lord Chancellor would have to rely on advice, so would the Lord Chief Justice.
Certainly, I will make sure that the Lord Chancellor reads today's Hansard. The point is that it is advice that comes from the process of the Judicial Appointments Commission. Just as the noble and learned Lord, Lord Falconer, wants the Executive still involved, I am not so convinced and, even more importantly, nor is the Lord Chancellor. As I have said, we both take a view about the separation of powers of which this could and should be a useful symbol: the Lord Chancellor of the day would not be holding on to a rubber-stamping exercise, he would be leaving it with the Lord Chief Justice of the day. This has been an interesting mini-debate, which I will raise with the Lord Chancellor for further consideration.
I am grateful to the Minister for saying that he will raise this matter. Perhaps I may say that the Minister's arguments were much better before he moved on to his written notes, which were of poor quality. On the point made by the noble and learned Lord, Lord Woolf, as regards the Lord Chief Justice knowing the candidates to be Admiralty Registrar better than the Lord Chancellor, I agree that that is an unlikely assertion. The implication of what the Minister said was that, unlike the circuit Bench, the deputy registrars and the Masters, the Lord Chancellor would be aware of all the candidates who would be going up for High Court appointments.
Speaking for myself, when I came from the Bar to being the Lord Chancellor, I was not aware of all the candidates. I would imagine that as regards the current Lord Chancellor-who I greatly admire and I believe utterly, with no doubts at all, to be a defender of the independence of the judiciary-90% of the people, if not more, who are being considered for the High Court Bench are equally unknown to him in relation to the circuit Bench. The judicial appointments system is not supposed to be on the basis that the Lord Chancellor knows the people and therefore has some input, but on the basis of him looking at the way in which the system works.
I found the friendly Minister saying, "I will give this a thought", more attractive than the unsatisfactory nature of what was said in defence of the argument. Let me give the Minister two pauses for thought. First, if as Lord Chancellor you had not appointed one woman circuit judge for a year, you might want to ask about that in a way that the Lord Chief Justice would not be in a position to do anything about it. Secondly, let us suppose that the Judicial Appointments Commission said that in relation to circuit judge and recorder appointments it is going to award those appointments only to those people who have a 2:1 from Oxford or Cambridge. The Lord Chancellor can do something about that in the way in which the Lord Chief Justice cannot because the Lord Chancellor has a role in judicial appointments. Those two points are in aid of and additional to the point made by the noble and learned Lord, Lord Woolf, which I had not made but which is just as important; namely, that when there is a question mark about what a circuit judge has done, which there is very frequently, there needs to be someone in Parliament who has had some responsibility for appointing that judge and can say that the appointment was made in a sensible way. The idea of shuffling that off to the Lord Chief Justice is a mistake which will weaken the judiciary in our constitutional arrangements, without in any way improving the separation of powers. I hope that we will think about this issue again.
I think that that is called extra time. So as to make it clear, I and I alone take responsibility for anything that I say from this Box. Just to give the noble and learned Lord, Lord Falconer, some idea of how deep the Lord Chancellor and the Lord Chief Justice go, having sat in on a number of meetings, I now have a full knowledge of the working of the Midlands Circuit 1970. I will take those points back.
I cannot resist the temptation to ask how many people who were on the Midland Circuit in 1970 are now being appointed judges. Their age, if they were on the circuit then, would now be 68.