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House of Lords

Tuesday, 4 December 2012.

2.30 pm

Prayers—read by the Lord Bishop of Guildford.



2.37 pm

Asked by Baroness Knight of Collingtree

To ask Her Majesty’s Government what steps they will take to prevent illegal abortion operations.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, an abortion may take place only on grounds under the Abortion Act 1967, as amended. Allegations of illegal abortions are taken very seriously by the Government and anyone suspected of acting outside the law will be referred to the police for investigation. It is for the Crown Prosecution Service to decide whether to prosecute individuals and for the courts to determine whether there has been a breach of the law on abortion.

Baroness Knight of Collingtree: My Lords, is my noble friend aware that Parliament passed the Abortion Act 1967 on very firm assurances that clear medical reasons would have to be agreed by two doctors, who examined the patient before an abortion could take place, and that abortion on demand would not happen? Is he aware that if Parliament had known that abortions would occur because the coming child was a girl when the mother wanted a boy, the Act would not have gone through? Did he note the Government’s Care Quality Commission’s findings that some doctors who have never even seen the patient are signing blank forms and leaving them in a handy place for use by colleagues, while others are aborting girl babies unwanted by the mother for no medical reason at all? What is being done to stop these illegal acts?

Earl Howe: My Lords, my noble friend raises some extremely important questions. The House will remember that reports came to light in February of pre-signing of the HSA1 forms—the approval forms that have to be signed by two doctors—and the CQC carried out a serious of unannounced inspections of all abortion providers in the light of that story to uncover any evidence of pre-signing. As a result, 14 NHS trusts were found to be non-compliant and clear evidence of pre-signing was identified. We await the outcome of investigations by the Metropolitan Police on that issue. Of course, as a department, we take it very seriously indeed.

On the issue of sex selection, my noble friend is absolutely right. The Act stipulates specific circumstances in which termination of pregnancy is permitted. Gender selection is not one of those circumstances. It is illegal for a practitioner to carry out an abortion for that

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reason alone, unless the certifying practitioners consider that an abortion is justified in relation to at least one of the Section 1(1) grounds in the 1967 Act. My noble friend will also be pleased to know that the Chief Medical Officer for England has written to all clinics and hospitals undertaking abortions to remind them of the provisions of the Abortion Act.

Lord Alton of Liverpool: My Lords, is the Minister familiar with a report that recently appeared in the Economist, which said that around 100 million abortions have taken place throughout the world on the basis of gender, which it calls “gendercide”? Does he not agree that in a country where routinely, every working day, there are some 600 legal abortions there is a real danger that, culturally, people imagine that it is simply a right to choose to take a life on whatever basis they believe it reasonable to do so? Can he therefore spell out again the illegality of taking the life of a child on the basis of its gender? Can he tell the House what penalties there will be when such actions occur and how long it will be before the police inquiries complete their course?

Earl Howe: In answer to the last question I have no firm information about when the police inquiries will complete their course. They have been ongoing for some months. The noble Lord, Lord Alton of Liverpool, is right to raise his concern, but I can again state emphatically that under the law of this country it is illegal to perform an abortion on grounds of sex selection alone. If evidence of such practices comes to light, the penalties are that the doctor or doctors concerned may be referred to the GMC. The Care Quality Commission will be called in and there will be the possibility of police investigation and prosecution resulting. This is not something that any provider of NHS-funded abortions should ever consider doing.

Lord Steel of Aikwood: Does my noble friend agree that the real scourge of illegal abortion occurred before the 1967 reforms, when every hospital in the land had patients admitted for septic and incomplete abortion, and up to 50 women a year died as a result of criminal abortion? Does he accept that, in addition to the gender selection question, another worrying feature is the number of women reporting for repeat abortions, who appear to be using abortion as a form of contraception? Does that concern his department?

Earl Howe: My Lords, I pay tribute to my noble friend for the role that he played in bringing the 1967 Act to the statute book. We have no particular evidence that repeat abortion is a rising issue. Contraception prevents the establishment of a pregnancy and the number of women visiting contraception clinics has, I am pleased to say, gone up, particularly among the young. We are seeing a fall in the number of abortions in the teenage age group. Unfortunately we are also seeing a rise in abortions in the 20 to 29 age group. While I agree with my noble friend’s initial comments, the focus of the public health effort has to be to bear down on the figures as we see them today and make sure that all women have access to contraceptive advice.

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Baroness Gould of Potternewton: My Lords, the Minister has answered part of my question, but I shall question him a little further. First, I make the point that of course the law must be maintained at all time. Some of the arguments demonstrate attempts not to keep to the 1967 Act. Is it not therefore important that we stress what it says and maintain in absolute the Act as it stands? Any attempt to water down that Act would return us to the days of backstreet abortions and the deaths that followed them. Does the Minister agree—he mentioned this in his last point—that we should maintain proper, available contraceptive services for all ages? A lot of PCTs are not giving contraceptive services to the over-24s, which is why the abortion rate has gone up in that age group. Does he agree that there should be open access to contraceptive services for all ages and by all methods?

Earl Howe: My Lords, I agree with the thrust of the noble Baroness’s two points. In particular, I agree that there should be no departure from the terms of the 1967 Act, which is why the CMO took the trouble to write to all clinics and hospitals, as I mentioned earlier, to remind them of the provisions of the Abortion Act and in so doing to remind them that sex-selective abortions are illegal.

I must correct what I said earlier. I hope I did not give the wrong impression about repeat abortions. My briefing states that in 2011, 36% of women undergoing abortions had had one or more previous abortion. That proportion has in fact risen from 31% since 2001. Twenty-six per cent of abortions to women aged under 25 were repeat abortions, which is quite a high percentage.

Banks: Funding for Lending Scheme


2.47 pm

Asked by Lord Sharkey

To ask Her Majesty’s Government what is their assessment of the performance to date of the Funding for Lending scheme.

Lord Newby: My Lords, we are still in the very early days of the scheme. However, initial indications have been positive. Bank funding costs have declined, mortgage availability has improved and quoted rates on fixed-rate mortgages have decreased since the scheme was announced. Participating banks have also introduced discounted loans for small and medium-sized companies.

Lord Sharkey: My Lords, there is a lot riding on the Funding for Lending scheme, but its current performance is far from clear. For example, in quarter 3, Barclays increased net lending by nearly £4 billion and the taxpayer banks—RBS and Lloyds—decreased lending by over £3 billion the same period. Overall, net lending to businesses continues to decline. Does the Minister agree that the Funding for Lending scheme can be judged a success only if it helps to produce an increase in lending to business, especially small businesses? Will he persuade the Bank to disaggregate the figures

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it publishes so that we can see exactly how much lending is going on to small businesses when we see the quarterly Funding for Lending scheme report?

Lord Newby: My Lords, one of the core principles and purposes behind the scheme is to increase lending to small and medium-sized businesses. We are confident that as the scheme gathers pace, it will be clearer that it has been effective. On figures on lending to small and medium-sized businesses, the Bank already publishes the quarterly Trends in Lending report, which covers SME lending. The most recent report was published in October. This report gives a very good time series about what is happening to lending to SMEs, and we are not convinced that having a second, broadly equivalent, series produced on a slightly different date would help to explain what is happening any more clearly than is already the case.

Lord Barnett: My Lords, the press to some extent has supported the Minister. The Financial Times said:

“The government’s flagship scheme to encourage banks to lend more to businesses and consumers is showing some signs of working—for banks, at least, if not yet for their customers”.

That is what most of the press have been saying: the banks have been taking the money and not lending it. If, in the process, the Bank of England loses money on the swaps it is doing on mortgages, will those losses be transferred to the Treasury in the same way as its profits were?

Lord Newby: My Lords, I think that the noble Lord is missing the fact that, over the period, the banks that are signed up to this scheme have made an additional £500,000 of loans to businesses and individuals. This is exactly what the scheme was intended to do. All the evidence is that the participating banks intend to use it to a greater extent in the future than they have up to now—it is very early days—and therefore I am sure that the question that the noble Lord has in his mind will not arise.

Lord Haskel: Did the Minister notice in today’s paper that some of the banks have not yet prepared their offer under this scheme? What are the Government doing to chivvy them up?

Lord Newby: The important thing is that the big banks have got a very clear offer. RBS, for example, has launched a £2.5 billion fund for SMEs specifically under this scheme, with the rate of interest charged being 1% less than would otherwise be the case. Lloyds TSB has also reduced its rate by 1% and noble Lords will no doubt have seen the double-page ads that it has taken out in the papers to persuade small businesses to take out a loan. Barclays has introduced a 2% “Cashback for Business”. So the big banks are already absolutely on the case; the smaller banks, which have signed up over a period, are, indeed, developing their offers.

Lord Davies of Oldham: My Lords, the Minister is surely guilty of great complacency. Is this scheme not going the same way as Merlin and various other efforts under this Government? Will he not acknowledge

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that £500,000 is a flea bite in terms of investment in our society and in business at the present time? Will he accept the fact, which he did not mention in his figures, that lending for business over the past quarter as a whole decreased by £3.3 billion? What on earth the Minister is doing producing complacent responses to these questions, I do not know. Do we not quite clearly need a British investment bank, backed by the Treasury, that can ensure that funds are made available to industry and business in order to guarantee recovery?

Lord Newby: My Lords, only a Labour Party Front-Bench spokesman could say that £500,000 is a flea bite. The figures show clearly that there is a realignment of activity in the lending market towards new entrants, which is exactly what the Government and, I think, the Opposition have been seeking to bring about. If we look at a bank such as Aldermore, it is just about the best performer in terms of increasing its size of offer. I am sure that noble Lords will be particularly pleased to see that the building society sector, with Nationwide very much in the lead, has significantly increased its lending specifically because we have the Funding for Lending scheme in place.

Police and Crime Commissioners: Elections


2.52 pm

Asked by Lord Roberts of Llandudno

To ask Her Majesty’s Government what is their assessment of the operation and turnout of the elections for Police and Crime Commissioners.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, more than 5 million people turned up to vote in last month’s first ever election of police and crime commissioners, giving them an infinitely bigger mandate than the unelected and largely invisible police authorities they replaced. That number will only grow in the future as people see the real impact of PCCs and the changes that they will make in their areas, delivering on public priorities for dealing with crime.

Lord Roberts of Llandudno: I do not know whether to thank the Minister for that reply or not. The turnout nationally was 15%, the lowest being in Staffordshire at 11.6%. Does that really give a valid mandate to these new commissioners? We were told that the turnout would increase in the London mayoral elections, but there was a 34% turnout in 2000, the first election, while this last year it was 38%. It has gone up by only 3% or 4% in 12 years, so the facts do not bear that out. Nationally, in the police and crime commissioner elections, each vote cost £14, but in north Wales, it cost almost double that—£25 a vote. The election cost a conservative estimate of £75 million. It could be more—that is a conservative estimate. The sum would have paid for 3,225 new police constables.

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Noble Lords: Question!

Lord Roberts of Llandudno: I am asking a question. My second question, which I am allowed, is: which is the better way of spending £75 million of public money—is it on 3,225 new police constables or on police commissioner elections with a 15% turnout?

Lord Taylor of Holbeach: My noble friend has worked very hard at producing figures which I am afraid I do not recognise. The total recoverable cost of the election in north Wales, as set out in the Police and Crime Commissioner Elections (Local Returning Officers’ and Police Area Returning Officers’ Charges) Order 2012 is £1,063,000. The north Wales police area returning officer believes that the cost of contingencies for Welsh language ballot papers comes to around £62,000. Therefore, with 80,000 votes cast in north Wales, it comes to significantly less than the figure quoted by my noble friend.

Lord Mackenzie of Framwellgate: My Lords—

Lord Howarth of Newport: My Lords, is not one of the lessons of this fiasco that people do not want gratuitous constitutional changes shoved down their throats?

Lord Taylor of Holbeach: Two questions were being asked at the same time, but I shall take that of the noble Lord, Lord Howarth of Newport. I do not accept that for one moment. By-elections were held the same day and, in one case, the retiring Member of Parliament received very much the same turnout as the winning candidate in the seat that he had vacated. That does not affect the legitimacy of the outcome, nor will it affect the authority with which police and crime commissioners will tackle their task, with a mandate on behalf of the people to make sure that we have effective crime policies in this country.

Lord Elystan-Morgan: My Lords, does the Minister recollect that when taxed with the question of the low turnout both the Prime Minister and the Home Secretary said that it was easily foreseeable that in a situation as novel as this the turnout would be low. Why, then, was no free mail shot considered? I ask him to answer this question with the sweet benefit of hindsight, but is it the case that perhaps the wrong question was asked? Rather than ask whether we could possibly afford it, perhaps we should have asked whether we could possibly afford not to do it.

Lord Taylor of Holbeach: As the noble Lord will know, because I know that he has been interested in this subject and I have talked to him in Questions before about informing voters on this issue, more than 2 million people took advantage of access to the website to inform themselves about their candidates, and more than 200,000 people asked for a printed version of the candidates’ election address on the website and took advantage of that opportunity. There is no free post, and I do not think that the £30 million that postage would have cost would have been justified.

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Lord Waddington: Would it not have been a lot better if the polls had taken place at the time of the local elections? Would the poll not have been very much higher then—and was it not the wish of the Liberals in the coalition who insisted on the vote not being taken at the right time?

Lord Taylor of Holbeach: I note what my noble friend has to say on that matter, but I am a great believer in the coalition. We will be taking his advice, because the next election will be three and a half years from now, in May.

Lord Mackenzie of Framwellgate: Are safeguards in place for the appointment of deputy commissioners? Is he aware of articles in the press suggesting that a number of deputy commissioners have been appointed by commissioners who were relatives and friends? Is this not the nepotism that was predicted?

Lord Taylor of Holbeach: I cannot speak to those particular allegations. All I can say is that the appointment of a deputy police and crime commissioner is not obligatory, but is something that police and crime commissioners can do. Further, they are required to appoint a head of paid staff and a finance officer. The latter two posts are the only ones that the law requires.

Lord Grocott: My Lords, however the Minister might interpret the turnout at the elections, could we agree that there was no evidence of any wild enthusiasm for these new commissioners? Would he further accept that this is in keeping with a pattern? On the same day, the people of Hartlepool decided that they did not want a directly elected mayor; just as nine out of 10 cities earlier this year decided that they did not want a directly elected mayor; just as the overwhelming majority of the British people in a referendum last year decided that they did not want a new electoral system. Could the Minister advise those constitutional experts in the Government who keep wanting to fiddle about with the constitution, that before they do so they might at least think about listening to the views of the British people?

Lord Taylor of Holbeach: I am really sorry, because I have great respect for the noble Lord, that he appears to speak against the extension of democracy to this important area of government. I am prepared to wager with him that the next police and crime commissioner elections will attract increased participation that is a great deal more than these elections.

Schools: Performance


3.01 pm

Asked by Lord Bates

To ask Her Majesty’s Government what assessment they have made of variations in school performance across England, in the light of the Annual Report of HM Chief Inspector of Education, Children’s Services and Skills 2011–12.

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The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, overall the Ofsted annual report showed that the performance of schools has improved, with 70% of schools rated good or better compared with 64% five years ago. However, it also showed marked variations in performance between different local authorities with similar levels of deprivation. The department undertakes its own analysis of individual school performance alongside that of Ofsted. It uses this to identify schools which could benefit from academy status.

Lord Bates: I am grateful to my noble friend for that Answer and I share his concern about variations. Can he confirm that the report highlighted that in Barnsley, 20% of children attend good or outstanding schools, whereas in Wigan the figure is 95%? In the leafy borough of Merton in London, 45% attend good or outstanding schools, whereas in Tower Hamlets the figure is 78%. Does this not nail the myth that performance in schools has anything to do with levels of social deprivation? Will he move with all pace to do all he can to exercise the powers he already has to take schools that are failing our children from local authority control and give them academy status?

Lord Hill of Oareford: My noble friend is right to highlight some of the variations that the Ofsted report illustrates. We should all look at that. The conclusions he draws are the same that the chief inspector draws: that it is possible for outstanding schools in areas of deprivation to perform extremely well for their children. So far as the second point is concerned, if we can find an agreed way forward for a sponsored solution with local authorities in the cases of under-performance, that is the route we would prefer to go down. However, I can reassure him that in cases where that is not possible, we will use our powers of intervention.

Baroness Sharp of Guildford: Does the Minister not agree that the variations in school performance reflect the quality of school leadership, as much as anything else? Does he think that the Government are doing enough to encourage talented young teachers to go forward as school leaders at the moment?

Lord Hill of Oareford: I agree with my noble friend about the importance of school leadership, obviously. It is always the case that it is people who make the greatest difference. I would contend that the academy freedoms provide more space for those great leaders to exercise their professional judgment. So far as her important point about the provision of new leaders is concerned, I agree with her. We have extended the national leaders of education programme and the Teach First programme. We are extending the number of teaching schools. These are all important initiatives that should lead to an increase in the number of excellent school leaders to whom she rightly refers.

Baroness Farrington of Ribbleton: My Lords, will the Minister confirm publicly that the oft-used mantra of local authority control is no longer the case, and that local authorities have powers and duties but control

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is not among them? Given the full range of skills that young people need in their lives, is it not a disgrace to watch additional primary school places being provided in areas such as Pimlico, where they are not needed, and being built on sports areas which were used extensively by children and young people who cannot afford private sports clubs?

Lord Hill of Oareford: I have discussed the specific case that the noble Baroness raises before. I am not sure that the facts around primary school places and sports provision in London are quite as straightforward as she portrays. To take the general point, I feel very strongly that it is right that there should be more choice locally for parents who want outstanding primary school places. Whether or not there is a basic need problem, it is right that they should have that choice. So far as the free schools generally are concerned, most of that new primary provision is in areas of basic need. As regards the role of local authorities, they are discharging their responsibilities in different ways across the country. Clearly, the trend over a long period has been towards greater autonomy for schools, and that is something on which this Government are trying to build.

Lord Quirk: My Lords, should we be concerned not just with the variation between schools but between schools and young offender institutions and within young offender institutions, where this report shows that the skills and learning provision is both thin and patchy?

Lord Hill of Oareford: I agree with the noble Lord’s point. It is an area where more work needs to be done. I accept that the provision is patchy. As regards the variation between different kinds of provision, the more we can publish data which illustrate what the facts are, so that people can then draw their own conclusions on the action needed, it is a good and healthy development.

Baroness Sharples: Can my noble friend tell me what proportion of children going to school now have English as their second language?

Lord Hill of Oareford: I am afraid that I do not have those figures in my head but I will write to my noble friend and make sure that she has them.

Lord Davies of Oldham: My Lords, why does the Secretary of State constantly refer to Sweden as a model of good schools when the Economist Intelligence Unit in its recent survey of world performance ranked our schools in sixth place and Swedish schools in 21st?

Lord Hill of Oareford: My right honourable friend refers to a number of international examples of different kinds of system from which we can learn. However, the noble Lord will probably also know that alongside the Economist report to which he refers, which did, indeed, say what he says, there are a number of reports, including the PISA reports, which, sadly, do not yet show us in quite such a good light. The encouraging thing about the Ofsted report which I am keen to

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emphasise is that it points to a number of improvements over recent years, including under the previous Government, towards a more self-supporting system, the development of good new heads and stronger teachers, and that is something on which we are building.

Syria: Chemical Weapons

Private Notice Question

3.08 pm

Asked by Baroness Symons of Vernham Dean

To ask Her Majesty’s Government what is their response to the briefing from the United States Department of Defense that their intelligence sources have detected the movement of Syrian chemical weapons components in recent days; and President Obama’s statement yesterday that Syria would be held accountable for any use of such weapons.

Baroness Symons of Vernham Dean: My Lords, I beg leave to ask a Question of which I have given private notice.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, we share President Obama’s deep concerns about Syria’s chemical weapons. Any use of chemical or biological weapons would be abhorrent and universally condemned. Any use of chemical or biological weapons would make us reconsider our calculations and revisit our approach to Syria. We continue to work closely with our international partners, including the United States, to monitor closely developments relating to Syrian chemical weapons. We continue to urge the Syrian regime not to use these weapons and to ensure that they are secured.

Baroness Symons of Vernham Dean: My Lords, I thank the Minister for that Answer. Today the Secretary-General of NATO has echoed President Obama’s view that any use by Syria of chemical weapons would be completely unacceptable. Can the Minister tell us what discussions Her Majesty’s Government are having on this issue with the United States of America and within NATO, and will she confirm media reports that Foreign Ministers meeting today in Brussels are discussing the deployment of Patriot missiles into Turkey?

Baroness Warsi: My Lords, a number of discussions are ongoing in relation to both the NATO formats and other bilateral and multilateral formats as well. As I reported to the House about a month ago, we are discussing a number of options in relation to Syria. We have always made it clear that we need to do more. The noble Baroness is aware of the challenges that we have had at the United Nations Security Council in this matter. However, in light of this recent information which has come to light, we are keeping our discussions under constant review.

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Lord Wright of Richmond: My Lords, whatever the origins of the present problems in Syria, does the Minister agree that that country is now involved in a very dangerous civil war between Sunnis and Shias and that it would be disastrous for the British Government to become militarily involved in any way?

Baroness Warsi: My Lords, we have always indicated that we must do all that we can to bring the fighting and bloodshed to an end. The noble Lord will be aware from my previous Answers that we have worked closely with the opposition, who have now formed a formal opposition, the National Coalition of Syrian Revolutionary and Opposition Forces, whom we have now formally recognised. We continue to support the opposition in trying to bring this bloodshed to an end.

Lord Anderson of Swansea: My Lords, Russia is the main supplier of weapons to Syria and the main protector of Syria in international fora. What evidence is there, if any, that Russia takes this matter seriously? Do the Government accept that evidence, and is there any evidence that Russia is seeking to restrain the Assad regime from the use of chemical weapons?

Baroness Warsi: We know that Russia shares our concerns about the use of chemical and biological weapons. We use all opportunities that we have in discussions with our Russian counterparts and, indeed, this matter was again raised in discussions that I had with the Russian ambassador only a few weeks ago. As for our concerns about where Russia has failed to act, specifically at the United Nations Security Council, the views of my right honourable friend the Prime Minister were very clear when he spoke at the United Nations.

Lord King of Bridgwater: My Lords, the Minister will recognise that if Patriot missiles are to be deployed, it must be solely for the purpose of ensuring the protection of Turkish citizens and the military situation in Turkey, and as the noble Lord, Lord Wright, has said, it must in no way become the thin end of the wedge, with our becoming militarily involved in that area. Does my noble friend welcome the fact that, as I understand it, President Putin is currently with Prime Minister Erdogan in order to discuss their relationship, and so that President Erdogan can give him a better understanding of Turkey’s position? We will see what Turkey can do to persuade the Russians of the importance of recognising the seriousness of the situation in Syria. It would be very welcome if Russia could be discouraged from giving too much support to the present regime.

Baroness Warsi: I agree with much of what the noble Lord has said; he comes to this issue with great expertise. Turkey is an important ally, and in relation to the humanitarian effort and support for the refugees it has been on the front line of this conflict.

Lord Triesman: My Lords, Jihad Makdissi, the Syrian Foreign Ministry’s senior spokesman, said in July 2012 that chemical weapons would not be used against the civilian population. That statement is wholly

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unconvincing: Syria is one of six states that have not signed the chemical weapons convention; its biological weapons research is proceeding; and, of course, it was another Baathist regime which thought nothing of using chemical weapons against its own people. Indeed, some remains are being exhumed this week in a forensic effort at Halabja. Is NATO’s Secretary-General Rasmussen perfectly reasonable to argue that the use of chemical weapons is completely unacceptable and that it is right, if necessary, to seek the protection of Patriot missiles for Turkey? Is it not right to seek peace in the region, of course, but also to be prepared realistically for further atrocities by President Assad?

Baroness Warsi: The noble Lord is right: it was earlier this year that the Syrian regime first accepted that it had these weapons. However, we treat with caution what has been said by spokespeople on behalf of the regime. The noble Lord may also be aware of reports this morning that Jihad Makdissi may have left the country. Of course, if it is true, we welcome that. There is some suggestion that he has defected from the regime, but it also raises concerns about assurances that he may have given in the past and about the current intentions of the Syrian regime.

Lord Alderdice: My Lords, at the start of this difficulty I urged Her Majesty’s Government to focus less on identifying another side to give military support to and more on giving support to our allies in Turkey who are on the front line of this problem and are very familiar with it. One of the difficulties particularly about giving weapons to the opposition is that it deepens division and exacerbates the conflict. Many people from Syria have been fleeing into Turkey and there are many tens of thousands of refugees. Even the talk about chemical weapons will ensure that those numbers increase to a flood. I do not suggest that Turkey cannot economically cope with these refugees, but it has been made clear to me by the Turkish Government that they would welcome an input from Her Majesty’s Government in the form of political support in the difficulties Turkey faces in dealing with massive numbers of refugees. Is it possible that Her Majesty’s Government have already been discussing this; or if not, is it something that they will take up urgently?

Baroness Warsi: I can assure my noble friend that we are in discussions with Turkey not only on these matters but, indeed, about the financial support that DfID has been giving on the border and the expertise and political support that we have given to Turkey in this matter. Although I hear the points that my noble friend makes about supporting our allies in the region, it is also important that a solution for Syria is brought about by the people of Syria. It is right that when the people of Syria come together in the form of an opposition we recognise it. I can, however, assure my noble friend that we are not supplying any weapons to the opposition.

Lord Elton: My Lords, this information comes to us as a result of surveillance by the American intelligence services. Can my noble friend tell us whether that

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surveillance has also confirmed that Syria is already using cluster munitions in this war? As cluster munitions continue to claim casualties for decades after their use, the casualties inflicted are far larger in number among the civilian population than among the forces engaged in combat, and the largest proportion of those casualties are children. Although chemical weapons are also horrid, they exact their price, move on and evaporate. In view of that, can we not also take as much notice of that horrible event as well?

Baroness Warsi: My noble friend makes an important point. Weapons of any kind—conventional, chemical or biological—can cause the destruction to which my noble friend refers. Chemical and biological weapons, as the noble Lord said earlier, are to be deplored.

Prisons (Interference with Wireless Telegraphy) Bill

Third Reading

3.19 pm

Bill passed and sent to the Commons.

Crime and Courts Bill [HL]

Crime and Courts Bill

Report (2nd Day)

3.19 pm

Amendment 79

Moved by Lord Ahmad of Wimbledon

79: After Clause 17, insert the following new Clause—

“Youth courts to have jurisdiction to grant gang-related injunctions

(1) Part 4 of the Policing and Crime Act 2009 (injunctions to prevent gang-related violence) is amended as follows.

(2) In section 49(1) (interpretation of Part 4) for the definition of “court” substitute—

““court” (except in Schedule 5A)—

(a) in the case of a respondent aged under 18, means a youth court, and

(b) in any other case, means the High Court or the county court,

but this is subject to any provision in rules of court that is or could be made under section 48(4);”.

(3) In section 43(7) (judge before whom person arrested on suspicion of breaching injunction under Part 4 is to be brought) for the words from “means” to the end substitute “means a judge of the court that granted the injunction, except that where—

(a) the respondent is aged 18 or over, but

(b) the injunction was granted by a youth court,

it means a judge of the county court.”

(4) In section 48 (rules of court in relation to injunctions under Part 4) after subsection (3) insert—

“(4) In relation to a respondent attaining the age of 18 after the commencement of proceedings under this Part, rules of court may—

(a) provide for the transfer of the proceedings from a youth court to the High Court or the county court;

(b) prescribe circumstances in which the proceedings may or must remain in a youth court.”

(5) Schedule (Gang-related injunctions: further amendments) (which makes consequential and related amendments in the Policing and Crime Act 2009) has effect.

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(6) Nothing in any provision of this section or of that Schedule affects proceedings in relation to applications made before the coming into force of that provision.”

Lord Ahmad of Wimbledon: My Lords, the amendments in this group will make a change to how the court system deals with gang injunction applications for those under 18 years of age. It will transfer the jurisdiction of gang injunction applications from the county court or High Court to the youth courts, sitting in their civil capacity.

As noble Lords may be aware, gang injunctions are a civil injunction introduced in the Policing and Crime Act 2009. They were subsequently extended to 14 to 17 year-olds in the Crime and Security Act 2010. Gang injunctions allow the police or local authority to apply for an injunction to prevent gang members engaging in, or to protect them from, gang-related violence. Injunctions can both prohibit and require certain activities or actions.

When gang injunctions were originally established, it was felt that the civil courts were best placed to hear the applications due to their expertise in handling civil injunctions, and this remains the case for adults. However, following discussions with practitioners, we have come to the conclusion that the youth courts are best placed to deal with gang injunctions for 14 to 17 year-olds. It is our belief that youth courts have the appropriate facilities and expertise to deal with young people and that they will thus be able to handle these cases more efficiently and effectively for all those involved.

To facilitate this jurisdictional transfer, Amendments 79 and 82 also make a change to what can be done by the rules of court governing the injunction process, as well as making a small amendment which applies to all injunctions. I beg to move.

Lord Beecham: My Lords, we certainly commend the Government for this very sensible amendment. It is clearly right that defendants under the age of 18 who are members of gangs should be dealt with by the juvenile court in the normal way. It is some reassurance that 18 is the limit, so that, for example, the activities of the Bullingdon Club, should they get out of hand, would not be dealt with in a juvenile court but properly in the adult court. This is an amendment that we support.

Amendment 79 agreed.

Amendment 79A had been withdrawn from the Marshalled List.

Amendment 79AA, in substitution for Amendment 79A

Moved by Lord Beecham

79AA: After Clause 17, insert the following new Clause—

“Review into the Courts and Tribunal Service

The Lord Chancellor shall conduct a periodic review into the courts and tribunal service, including the public guardianship office, and the impact of section 17 and Schedules 9 to 11, including reports on its efficiency, cost, ease of access and user and practitioner satisfaction, and specifically the impact of court closures on court users and access to justice, and shall publish a report on the review to both Houses of Parliament.”

4 Dec 2012 : Column 547

Lord Beecham: My Lords, this amendment echoes an amendment which I moved and which was debated in Committee requiring a review into the Courts and Tribunals Service. At that time, the amendment suggested that an annual review should take place. In supporting the thrust of the amendment, the noble and learned Baroness, Lady Butler-Sloss, queried whether an annual review was sensible, given the scope of the proposed review, and this amendment recognises that she indeed made a very good point. It now merely suggests a periodic review rather than an annual review into the Courts and Tribunals Service in its widest sense.

The noble Lord, Lord McNally, who replied to that debate, indicated that there was already a duty on the Lord Chancellor to ensure the efficiency of the courts service and to report annually thereon, and indeed that the Courts and Tribunals Service and the Office of the Public Guardian also issued annual reports. That of course is true, but that answer really ignores the fact that the whole system is undergoing seismic change as a result of legislation already passed and currently under discussion in this House and, shortly, in the other place.

In my view and that of the Opposition, what is required is a systematic and regular, although periodic rather than annual, review of the whole system, not a series of separate, unconnected reports dealing with different parts of the system. The amendment clearly envisages not merely a report on the efficiency of the system but matters that are coming to the fore in the light of the Government’s policy, as enacted and as are being enacted in relation to,

“ease of access and user and practitioner satisfaction, and specifically the impact of court closures on court users and access to justice”.

Those matters affect various parts of the system and, in my submission, it is essential, particularly in the light of changes to the legal aid system, to measure the impact, to review the possible difficulties, some of which are already beginning to emerge, and, if necessary, to correct them.

Various parts of the system have slightly different track records. In Committee, I mentioned concerns about the Office of the Public Guardianship and the Court of Protection. The noble Lord, Lord McNally, will recall that when we were discussing the matter—he and the Bill team were good enough to afford me some time to do that—he said that he had only recently been approached by someone else with a concern about the Court of Protection. In Committee, I referred to some publicity about the court: a patient at the court complained that it had cost him £50,000 due to poor investment control.

Perhaps I should renew my declaration of interest: I am now an unpaid consultant with my former firm of solicitors, where I was senior partner. I had there the conduct of a long-running case in the Court of Protection—long-running in the sense that the case arose out of clinical negligence and birth defects. The young patient is now 18 years of age. From time to time, I have had difficulty in obtaining responses from the Court of Protection; difficulty over the regularity and utility of supervision of the case in relation to financial and other matters; and a general feeling that many practitioners with wider experience of the Court

4 Dec 2012 : Column 548

of Protection felt that the move of staff to centres in Nottingham and Birmingham has not assisted the efficiency of the court.

Here, by definition, we are dealing with the problems of vulnerable children and adults and those who are appointed to look after them as deputies under the general supervision of the court. That is one important example where, in my view, there needs to be a periodic review linked to other issues. As I have already mentioned, there has been a change to the legal aid system. The noble and learned Baroness, Lady Butler-Sloss, referred in Committee to the problems that she envisaged in the family court with unrepresented litigants having to appear on their own behalf. There is widespread concern among the judiciary at all levels that that may well result in a clogging up of the court system as people struggle with presenting their own cases and having to be assisted by the court in the absence of proper advice.

In addition, a wide-ranging closure programme of magistrates’ courts in various parts of the country has led to difficulties with witnesses and parties attending a more distant court. It seems to me that it would be proper to measure the impact of that in terms of access to justice.

Another area of concern relates to some of the processes involved under the single court that now exists. We have county court buildings and we have a single county court. In principle, there is nothing wrong with that but, as I pointed out in Committee, the Government have not really followed the recommendations of Lord Justice Jackson, whose report, as we have noted on previous occasions, has been cherry picked in a variety of instances. In this case, the concern arises out of the problems of litigants and their legal representatives issuing proceedings. Lord Justice Jackson proposed that there should be regional court centres but, as he said clearly, 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”.

That does not happen, which has serious consequences.

3.30 pm

I referred in Committee to the problems at the Salford Centre in particular, which is where money claims are issued. The Minister replied, no doubt on the basis of advice tended to him, that things had started slowly but were getting better. Yet the Law Society Gazette on 25 October reported:

“Almost two-thirds of users of the Salford civil claims centre rate the service as poor”,

and one-third considered that it got worse rather than better over the past few months. One contributor in a comment to the Law Society Gazette said:

“Salford is a good example of the Government trying to deal with things in a very proficient and one stop shop way. In reality its a total disaster which needs overhauling urgently and made to be more accountable and efficient. Starting with the right staffing levels would help, as well as more dedicated phone staff and someone who even answers in a reasonable time”.

Solicitors frequently complain about having to wait for two or three weeks or perhaps more for their claims to be processed. That cannot be satisfactory.

4 Dec 2012 : Column 549

We have a situation in which in its various component parts the system is under great pressure. That is exacerbated by some of the changes that the Government, for their own no doubt worthy reasons, have sought to bring into effect. I cannot agree with the answer given by the Minister on the last occasion that there was a system of reporting that in its component parts meets the requirements of a thoroughgoing review. That is particularly in relation to what is happening to access to justice for litigants of all types and the efficient processing of their claims, and in relation to the Court of Protection for the long-term arrangements for effective supervision of its substantial case load of vulnerable people.

I hope that the Minister can give some clear assurances about this. It is not asking a great deal to invite the Government periodically to keep matters under review and assess how their own legislation is working on a regular basis rather than simply in respect of those matters that have recently been enacted. It could be simply on the basis of post-legislative review. Some of these matters might ultimately fall within that five-year period but others would not because the legislation in some instances is long-standing. To treat the whole system as one that requires review seems an efficient way of dealing with the concerns of the profession and the public about this aspect of our judicial system. I beg to move.

Lord Pannick: My Lords, I support the amendment. One of the great defects in legal reform is the piecemeal nature of the exercise. As holes appear they are filled in. No doubt we do not need an autumn and spring statement on the legal state of the nation, but a periodic review would, in my opinion, be very helpful in focusing attention on the system as a whole. I very much hope that the Minister will accede to that proposal.

Baroness Butler-Sloss: My Lords, I also support the amendment. I remain very concerned about the impact of changes to legal aid on the family courts. It is absolutely necessary to have a review from time to time to see how the courts are coping with the endless litigants in person who will find themselves trying to cope at a very traumatic time of their lives when their relationships have broken down and there is no legal help at all. I very much support the amendment.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the noble Lord, Lord Beecham, gave a useful review of the remit and responsibilities of Her Majesty’s Courts and Tribunals Service. I note that both the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, voiced support for his idea of an annual review. I have to say that the Government are not persuaded of the case for that.

Baroness Butler-Sloss: I understood it not to be annual but to be periodic. Annual would be too frequent.

Lord McNally: Then, the Government are not persuaded of the case for a periodic review. That is in part because the Government continually review these

4 Dec 2012 : Column 550

areas. Part of the approach that we have taken is to try to avoid some of the piecemeal approaches that the noble Lord, Lord Pannick, criticised in his brief intervention.

We are bringing forward a comprehensive set of reforms in this area. We will see how they bed in and we will be constantly interested in any comments or any feedback on them. As I indicated in Committee, and in line with the commitments made in the published impact assessment, we will review the effectiveness of the single county court and single family court within five years of Royal Assent so that the new arrangements have time to become established and for the benefits to be realised.

As for any other review of the whole of Her Majesty’s Courts and Tribunals Service, the Lord Chancellor is already under a statutory duty to ensure that there is an efficient and effective system to support the carrying on of the business in the courts and to report annually to Parliament on the discharge of this duty under Section 1 of the Courts Act 2003. To this end the Lord Chancellor lays the annual report of Her Majesty’s Courts and Tribunals Service before Parliament.

Furthermore, Her Majesty’s Courts and Tribunals Service takes its obligations under the Government’s transparency agenda seriously. It routinely publishes performance data including providing clear and local information about how long it takes to decide cases in the civil, family and criminal courts. I was in talks recently with the senior judiciary overseeing the family courts and they made the point to me that this new transparency and the collecting of comparative data between courts was of considerable help in assessing which courts were not performing well and which courts were performing very well. This again is part of a general policy of check and balance in carrying forward these reforms. However, we do believe that imposing a further requirement for an additional annual review would be excessive, expensive and unnecessary.

The noble Lord, Lord Beecham, referred in particular to the Court of Protection and the Office of the Public Guardian—and indeed we had talks on this. The noble Lord raised his concerns in relation to the operation of the Court of Protection and the Office of the Public Guardian. He will recall that I wrote to him about this in July this year. Let me be clear. I recognise that there were concerns. The Court of Protection and the Office of the Public Guardian deal with some of the country’s most sensitive cases and it is important that they operate effectively and efficiently. When the Mental Capacity Act 2005 was implemented, both the Court of Protection and the Office of the Public Guardian faced a significant increase in the number of applications for court orders and applications to register enduring powers of attorney and lasting powers of attorney, with which the then IT system struggled to cope. In addition, the court was hampered by a shortage of judges. This resulted in a build-up of cases waiting for judicial decision.

However, things have improved considerably since then. The Court of Protection rules were changed to enable applications to be dealt with by authorised court officers in non-contentious cases. To date, this has resulted in fewer than 100 cases having a waiting

4 Dec 2012 : Column 551

time of 10 days or more, meaning that the majority of cases are resolved in a timely fashion. Furthermore, Clause 19 of and Schedule 13 to the Bill will increase flexibility in the deployment of judicial resources, thus increasing the number of judges who have the ability to sit in the court. The Court of Protection has also embarked on a programme of continuous improvement to remove waste and inefficiency from the administrative process.

In April last year, the Office of the Public Guardian commenced a major change programme as part of the Ministry of Justice’s wider Transforming Justice agenda. A key element of this is the development of a new, more robust and flexible IT system that will enable the agency consistently to meet the increasing demand on its services while also radically improving the quality of those services. The Public Guardian has initiated a fundamental review of the supervision regime to ensure that the Office of the Public Guardian is supervising court-appointed deputies in the most appropriate way. This review is considering how to focus efforts on supporting those deputies who may need more assistance and, where there are no concerns, enabling deputies to fulfil their duties with minimal intervention. Where issues are brought to the attention of the Office of the Public Guardian, the intention is to deal with these swiftly and thoroughly. Currently, 98% of complaints are resolved and responded to within 10 working days. Furthermore, the court is now issuing applications within five days instead of four weeks and it processes complete and uncontested cases from start to finish on average within 16 weeks instead of 21 weeks. The Court of Protection is also the only court in London to have achieved Beacon status.

In summary, I believe that the direction of travel is positive for both the Court of Protection and the Office of the Public Guardian. However, we remain committed to providing the best service possible and protecting the interests of the vulnerable.

The noble Lord, Lord Beecham, also mentioned the County Court Money Claims Service based at the Salford Business Centre. Again, I recognise the concerns raised. The introduction of the County Court Money Claims Centre seeks to enable the Courts and Tribunals Service to make the very best use of its administrative resources and provides court users with a more efficient and consistent service across England and Wales. Our ultimate goal is to move to electronic processing in all but a minority of cases. Centralising the money claims centre in Salford, which deals with paper based claims, is a stage in that evolution, one that is long overdue and which follows long-established private and public sector practice.

Equally, we believe that a single county court will provide a more efficient civil justice system that is fit for the 21st century and where litigants can achieve a more efficient, proportionate and speedy resolution to their disputes. By removing the district boundaries that surround each individual court, the single county court will address restrictions that limit the way customers engage with the courts. Access to justice will be increased as it enables the Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in the most cost-effective way.

4 Dec 2012 : Column 552

The noble and learned Baroness, Lady Butler-Sloss, mentioned the single family court. We consider this court to be essential so that individuals can easily access the family court system when they need to. The new single family court will make it clearer and simpler for those who need to use the courts to resolve family matters. However, we are aware of the problems of self-represented parties and we are working urgently to take immediate action to assess self-represented parties affected by our legal aid changes, as well as developing a long-term strategy for the future. To date, this work has included taking forward the recommendations made by the Civil Justice Council, including making £350,000 of funding available to advice sector organisations to support self-represented litigants.

Her Majesty’s Courts and Tribunals Service also takes its responsibility to provide information very seriously and knows that courts operate more efficiently when customers are better informed. It is important that information provided to court users is accurate, up-to-date and straightforward and can guide court users down the correct path, thereby reducing the number of errors in the system.

I hope that, given my response to the review suggested by the noble Lord, Lord Beecham, and, in particular, my response to the comment of the noble Lord, Lord Pannick, the House will recognise that, yes, we are carrying out quite radical reforms but that they are joined up and we are taking action to improve and remedy defects where we have found them. As I said in my opening remarks, the idea that this process will not be kept under the very closest review and that Parliament will not have access to the outcomes of that review is mistaken. I therefore hope that the noble Lord will not press his amendment.

3.45 pm

Lord Beecham: My Lords, I am grateful to the Minister for a very full reply. In particular, I am pleased to hear his assurances in respect of the most recent performance of the Court of Protection. We will have to see whether that trend continues in the future.

However, the Minister said that it is all part of a single approach—and that, of course, is the thrust basically of the amendment. The whole system should be reviewed periodically—I repeat, periodically, not annually, as the noble Lord twice said in his reply—so that we can see exactly the balance across the system of changes that have been made both under and apart from legislation. Court closures and magistrates’ court closures do not require legislation and other issues, such as the performance of the Court of Protection, are not affected by current legislation. An holistic approach is necessary so that Parliament, on behalf of those who seek access to justice, can determine the efficacy of the system, its openness and whether it is working properly in a way which is not designed—because it would not be an annual review—to be costly and elaborate.

Most other departments look at policies across the piece and it seems sensible for the Ministry of Justice to do so. Under those circumstances, I beg leave to test the opinion of the House.

4 Dec 2012 : Column 553

3.48 pm

Division on Amendment 79AA

Contents 177; Not-Contents 218.

Amendment 79AA disagreed.

Division No.  1


Adams of Craigielea, B.

Adonis, L.

Ahmed, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Armstrong of Hill Top, B.

Bach, L.

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Best, L.

Bilston, L.

Blood, B.

Borrie, L.

Bradley, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Belmont, L.

Butler-Sloss, B.

Campbell of Surbiton, B.

Campbell-Savours, L.

Chester, Bp.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Cobbold, L.

Collins of Highbury, L.

Corston, B.

Crawley, B.

Crisp, L.

Davies of Oldham, L.

Deech, B.

Donaghy, B.

Donoughue, L.

Drayson, L.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Evans of Parkside, L.

Evans of Temple Guiting, L.

Falconer of Thoroton, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Fellowes, L.

Finlay of Llandaff, B.

Foster of Bishop Auckland, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Glasman, L.

Golding, B.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Grantchester, L.

Greengross, B.

Grocott, L.

Hanworth, V.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Newport, L.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hylton, L.

Janner of Braunstone, L.

Jay of Paddington, B.

Jones, L.

Judd, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kidron, B.

King of West Bromwich, L.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Knight of Weymouth, L.

Lea of Crondall, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Low of Dalston, L.

Lytton, E.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

Martin of Springburn, L.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan, L.

Morris of Aberavon, L.

Morris of Handsworth, L.

O'Loan, B.

Palmer, L.

Pannick, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Paul, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

4 Dec 2012 : Column 554

Prescott, L.

Prosser, B.

Radice, L.

Ramsay of Cartvale, B.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Rooker, L.

Rosser, L.

Royall of Blaisdon, B.

Sheldon, L.

Sherlock, B.

Simon, V.

Singh of Wimbledon, L.

Slim, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Sugar, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Tenby, V.

Thornton, B.

Tomlinson, L.

Touhig, L.

Triesman, L.

Tunnicliffe, L. [Teller]

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Walton of Detchant, L.

Warner, L.

Warnock, B.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Wigley, L.

Williams of Baglan, L.

Williams of Elvel, L.

Wood of Anfield, L.

Worthington, B.

Young of Norwood Green, L.

Young of Old Scone, B.


Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allenby of Megiddo, V.

Anelay of St Johns, B. [Teller]

Armstrong of Ilminster, L.

Ashcroft, L.

Ashdown of Norton-sub-Hamdon, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

Black of Brentwood, L.

Brabazon of Tara, L.

Bradshaw, L.

Bridgeman, V.

Brinton, B.

Brittan of Spennithorne, L.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brougham and Vaux, L.

Browning, B.

Burnett, L.

Caithness, E.

Cameron of Lochbroom, L.

Carlile of Berriew, L.

Cathcart, E.

Clement-Jones, L.

Colwyn, L.

Condon, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Craig of Radley, L.

Crathorne, L.

Dannatt, L.

De Mauley, L.

Dear, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Eames, L.

Eaton, B.

Eccles, V.

Eden of Winton, L.

Edmiston, L.

Elton, L.

Erroll, E.

Fearn, L.

Fellowes of West Stafford, L.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Fraser of Carmyllie, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Goodhart, L.

Goodlad, L.

Grade of Yarmouth, L.

Greaves, L.

Greenway, L.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Hanningfield, L.

Harries of Pentregarth, L.

Henley, L.

Heyhoe Flint, B.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Hollins, B.

Howard of Lympne, L.

Howe, E.

Howe of Aberavon, L.

Howell of Guildford, L.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inge, L.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

4 Dec 2012 : Column 555

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

Kakkar, L.

Kerr of Kinlochard, L.

King of Bridgwater, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Laming, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Levene of Portsoken, L.

Lexden, L.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Loomba, L.

Lothian, M.

Luce, L.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

MacLaurin of Knebworth, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Mar and Kellie, E.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Mawhinney, L.

Mawson, L.

Mayhew of Twysden, L.

Miller of Chilthorne Domer, B.

Miller of Hendon, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moser, L.

Moynihan, L.

Neuberger, B.

Newby, L. [Teller]

Newlove, B.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Palmer of Childs Hill, L.

Parkinson, L.

Parminter, B.

Phillips of Sudbury, L.

Plumb, L.

Popat, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Rennard, L.

Renton of Mount Harry, L.

Roberts of Conwy, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Rogan, L.

Rowe-Beddoe, L.

Ryder of Wensum, L.

St John of Bletso, L.

Sassoon, L.

Scott of Needham Market, B.

Seccombe, B.

Selkirk of Douglas, L.

Selsdon, L.

Sharkey, L.

Sharp of Guildford, B.

Sharples, B.

Shaw of Northstead, L.

Shephard of Northwold, B.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Clifton, L.

Soulsby of Swaffham Prior, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Stewartby, L.

Stirrup, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strasburger, L.

Strathclyde, L.

Swinfen, L.

Taverne, L.

Taylor of Holbeach, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Swynnerton, L.

Thomas of Winchester, B.

Tordoff, L.

Trimble, L.

True, L.

Trumpington, B.

Tugendhat, L.

Tyler, L.

Tyler of Enfield, B.

Ullswater, V.

Vallance of Tummel, L.

Verma, B.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wasserman, L.

Wheatcroft, B.

Wilcox, B.

Williamson of Horton, L.

Younger of Leckie, V.

4.04 pm

Amendment 79B

Moved by Lord Beecham

79B: After Clause 17, insert the following new Clause—

“Requirement for consultation

The Secretary of State shall publish and consult on a strategy for the delivery of legal information, support and dispute resolution services to the public by Her Majesty’s Courts and Tribunals Service.”

4 Dec 2012 : Column 556

Lord Beecham: My Lords, this amendment deals with the provision of information at the courts. In the previous debate the Minister referred to a grant of £350,000, which was to assist advice agencies in providing advice and support for litigants; modest as that amount certainly is, it is no doubt welcome. There is a significant problem in the courts, as outlined by Citizens Advice nationally, to which I referred in Committee. There are a significant number of courts where the reception staff are only now available for two hours a day and many in which they are not available at all. There is a significant potential problem with helping people who arrive at court not knowing what to do or in need of advice. In Committee, the Minister referred to the availability of online and telephone advice, and that is certainly the case, but, as we have said in this context and other contexts, not everybody finds online facilities or, indeed, the telephone all that familiar and useful.

In any event, in the earlier debate, the Minister said that he would be willing to talk with the voluntary sector to see whether and to what extent it could help and, as he put it, “short of committing money”, he was very willing to talk to it and hoped that he would be able to report back on Report—perhaps not with an amendment from me. He said that his good will was certainly there, and I have no doubt about that. I understand that there have been discussions. The Minister wrote to me about these matters but, at the moment, it does not seem that a conclusion has been reached. Will the Minister say whether he has met the voluntary sector and to what extent progress has been made in providing additional resources from that sector for this purpose? I recall that the noble and learned Lord, Lord Woolf, was very supportive of the original amendment in Committee, and from that most respected source I hope that the Minister would derive impetus for securing a resolution of a potential problem. It is now five months since we debated this in Committee, and I hope that the Minister has found it possible to advance discussions with the voluntary sector and will give an indication of the position now, and of where the Government hope to take this issue. I beg to move.

Lord McNally: My Lords, it is a given that we all have an interest in the smooth and efficient running of the courts. Clear, relevant and accessible information is critical for members of the public who will not always have the benefit of dedicated legal advice. I understand that the noble Lord, Lord Beecham, is attempting to ensure that there is support for the public in navigating the legal system and that where alternatives to resolving disputes through the courts are available, they are sufficiently visible.

While I support the notion behind the amendment, it is unnecessary to place an obligation on the Secretary of State for Justice to act as the custodian for this type of information. The Government’s digital strategy, published last month, set out how the Government will ensure that the GOV.UK website becomes the primary portal for information and guidance on all government services. Later this month, the Ministry of Justice will publish its own digital strategy which outlines how we will make our information available through GOV.UK.

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As part of this, the Ministry of Justice and its agencies will ensure that appropriate information and support is provided to assist the public to navigate its systems. A new online signposting service, currently being developed in conjunction with key partners, including those from the not-for-profit sector, will be a primary access point for any client or organisation looking for assistance to resolve a problem.

The new service will lead clients through eligibility tests for legal aid and direct people to the appropriate sources of assistance, including contracted legal aid providers where relevant. Where clients are not eligible for legal aid, they will be signposted to alternative sources of assistance and information. This online service is scheduled to go live on 1 April 2013.

We recognise that not everyone who uses government services is online, and that not everyone will be able to use digital services independently. The Government have to ensure fair access to services for those who are entitled to them. People who are offline will be supported to access digital services; for example, through intermediaries. As set out in the Government’s digital strategy, how this “assisted digital” will work in practice will depend on the services delivered and be developed by individual departments.

I also understand that there is concern that there will be an increase in self-represented parties—those navigating the legal system without representation—particularly following implementation next April of the legal aid reforms. The longer-term sustainability of the advice sector is a matter that goes beyond the Ministry of Justice and work in this area has consequently been led by the Cabinet Office. Its recently published review on advice services acknowledged that the Government have a role to play in supporting the advice sector in adapting to the new funding realities, but it also makes clear that advice providers will need to take the initiative and change the way they work in order to ensure a long-term sustainability of supply.

I spoke last Friday at the launch event for the implementation of the Civil Justice Council’s recommendations regarding self-represented parties. I was greatly encouraged by the positive attitude of the not-for-profit sector in seeking ways to work in partnership with Government to support greater numbers of self-represented parties in the future. At that meeting there were representatives of the not-for-profit sector, the judiciary, my own department and various parts of the legal profession. I was very encouraged by the positive attitude taken as to how we make the new system work.

For our part, the Government are providing additional funding for these organisations. The Ministry of Justice has already funded a number of actions recommended by the Civil Justice Council and the new Advice Services Transition Fund of £65 million launched this October will be key to supporting advice providers to adapt and transform over the next two years. This funding will allow them to establish strong collaborative networks, more effective relationships with public agencies and a more cost-effective approach to providing their help to clients in need.

Given the existing commitment to create a single portal for advice and support from the Government, through GOV.UK and the support we are putting into

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advice services, an obligation to create a parallel service would be administratively burdensome and unnecessary. I therefore urge the noble Lord to withdraw the amendment.

Lord Beecham: My Lords, I find myself rather disappointed with the noble Lord’s reply. He said in June that he was very willing to talk to the sector about this particular issue, look at it and report back on Report. That does not seem to have happened. I have no doubt that the noble Lord spoke at this meeting in the sense that he has described. It is certainly true that some funds—

Lord McNally: If I have not made it clear, I have now had the opportunity, as I said in my letter to the noble Lord of 25 October, to meet the National Association of Citizens Advice Bureaux and representatives from the Advice Services Alliance and the Personal Support Unit. I also referred to the meeting I went to last Friday. I have had widespread discussions, money has gone into this sector and I am hopeful that CAB and others will move now from campaigning against LASPO, which is now an Act, and work constructively with us to see how we can work on this new settlement. Certainly, the idea that I have not reported back to the House is one that I deny.

Lord Beecham: I am grateful that the Minister has amplified on what he said in his initial reply. Of course, I accept that he has had those discussions, as he now says, although they did not, perhaps, quite take the course that he foreshadowed earlier in the year. However, I make the point that the advice sector is struggling at the moment in a very considerable way to deal with significant cuts. I referred to the experience in the north-east, but it is true over many parts of the country. I hope that it will be possible for the advice sector to respond in the way that the noble Lord has indicated that he wishes to see it go. But again, it will surely be necessary to keep that situation under review, because there will be a substantial increase in demand for that advice and it is far from clear that the sector on its own will be able to sustain it.

I do not propose to press the amendment. We will see how matters develop, and possibly interrogate the noble Lord in future as to what is happening on the ground. I beg leave to withdraw the amendment.

Amendment 79B withdrawn.
4.15 pm

Schedule 9 : Single county court in England and Wales

Amendments 80 and 81

Moved by Lord McNally

80: Schedule 9, page 116, line 20, leave out sub-paragraph (2)

81: Schedule 9, page 119, leave out lines 5 and 6

Amendments 80 and 81 agreed.

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Schedule 10 : The family court

Amendment 81A

Moved by Lord Beecham

81A: Schedule 10, page 138, line 26, at end insert “provided the functions are deemed to be essentially administrative in nature, for example: case management decisions”

Lord Beecham: My Lords, this amendment deals with the proposal in the Bill to delegate some decisions in the family court to legal advisers. The amendment seeks to define those duties in a way that would avoid legal advisers assuming the role of the court itself in making effectively legal decisions. It is quite a different matter if they were to make effectively administrative or case management decisions on matters of that kind. There is a concern, among the magistracy as well as more generally, that powers to adjudicate should be conferred on legal advisers.

The Minister wrote to me in some detail about this, and I am grateful for that letter, but I understand that discussions are going ahead and have not yet reached a conclusion about the precise form of regulations that are to come to both Houses. It is unfortunate that once again we are in a position of enacting legislation without a clear view of how it is to be implemented. Your Lordships may think that that is happening rather too regularly. Clearly, however, the Government are taking this matter seriously, and I look forward to seeing the draft regulations and ultimately the statutory instruments, which I understand will be subject to affirmative procedure. That being the case, I do not know whether the noble Lord is in a position to give an indication of the scope of the proposed delegation, without going into too much detail, because the regulations have not yet been drafted and consultations are still taking place. It might be helpful if he were able to give an indication that there will be some kind of limitation perhaps not precisely along the lines of the amendment but avoiding too much of a judicial role being assumed by legal assistants as opposed to judges—and, for the purposes of the family court, magistrates become judges.

It would be helpful to have that information, although if it is not available we will simply have to wait. But while waiting to hear what the Minister says, I make it clear that I do not propose to press the amendment. We will have a parliamentary opportunity at some point, although not one that would allow us to amend anything. Even so, in those circumstances I will not be pressing the amendment, but it would be interesting to hear whether the noble Lord can update us to any degree.

Baroness Hamwee: My Lords, could I ask my noble friend a question? He may not be able to answer at this point, but I am afraid that it has only just occurred to me—it is with regard to assistant legal advisers. I can well understand that a person should be able to act as a legal adviser only if that person is a justices’ clerk, but why should a justices’ clerk, as distinct from an assistant to a justice’s clerk, not be able to act as an assistant legal adviser? It may be that the requirements on any given day, or because of the complexity of the

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matter or whatever, would make it more convenient for a justices’ clerk to act as an assistant legal adviser. It may be that I do not understand enough about how the magistracy works with its clerks at the moment. However, the points raised by the noble Lord, Lord Beecham, caused me to look back to see who these individuals might be, because I share his concern about what they would be expected to do. It is an odd little restriction.

Lord McNally: My heart always sinks when my noble friend says that she does not understand some particular point of law, because I think then that the odds of my being able to understand it are infinitely less. On that particular point, I will have to write to her on the nuances between magistrates’ clerks and assistant magistrates’ clerks. However, may I say to the noble Lord, Lord Beecham, that I understand and, to a certain extent—as much as I am allowed to as a Minister—share his irritation that sometimes the legislation and the various Explanatory Notes and schedules do not come in the right order? As he says, however, there will be a chance for Parliament to look at these matters in due course. I also pray in aid the fact that, as my noble friend Lady Hamwee indicated, the aim of these changes is to try to get greater efficiency in justice into our courts. I will take up the invitation of the noble Lord, Lord Beecham, to update the House on where we are.

We are all keen to ensure the smooth running and efficient nature of our courts. Indeed, the single family court will ensure a more efficient, user-friendly system that enables cases to be processed quickly and with minimum distress to any children involved. In order to achieve this it is essential that our courts operate to maximum effectiveness. One of the ways that the Government will be able to encourage this is to allow legal advisers and assistant legal advisers to carry out procedural and administrative functions. By doing so they will ensure that the wheels of justice continue to turn, while freeing up judicial time to make the difficult decisions and determine rights.

The amendment proposed by the noble Lord, Lord Beecham, seeks to restrict the delegation of powers to legal advisers. The noble Lord has pointed to the report of the Joint Committee on Human Rights, which observed that the power awarded to legal advisers could be used quite widely. It also expressed concerns that there may be an appearance of lack of independence or impartiality if legal advisers are allowed to make decisions other than administrative decisions, such as case management. However, the provisions in the Bill for the delegation of powers to legal advisers largely mirror the provisions made in the Courts Act 2003—legislation passed by the previous Administration. I always find it a comfort when I am able to draw the attention of the Opposition to the fact that we are using one of their Acts to do something. I am sure that it is also a great comfort to the Opposition.

These amendments would mean that legal advisers and assistant legal advisers in the family court would be able to exercise fewer functions than they can potentially already exercise in magistrates’ courts. The Justices’ Clerks Rules 2005, made under the powers in the Courts Act 2003, already delegate a number of

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functions in family proceedings to justices’ clerks and assistant justices’ clerks. Only those who are currently justices’ clerks and assistants to justices’ clerks in the magistrates’ court will be able to be legal advisers and assistant legal advisers in the family court. I should also stress that justices’ clerks and their assistants are all legally trained, and so we are not proposing to delegate functions to those who are not legally trained. While I understand noble Lords’ reservations about the delegation of powers to legal advisers, I am not persuaded that the delegation of powers should be restricted as the amendment proposes. If legal advisers were restricted to working solely in administrative functions, as the noble Lord suggests, it would be a step backwards, removing powers that they already have, and would lead to increased delay and less efficient family court procedures. In particular, Amendment 81B seems to suggest that legal advisers should not be able to perform the function of giving legal advice to lay magistrates in the family court, even though this is a key part of their role now in the magistrates’ court.

Lord Beecham: If it would be helpful to the noble Lord, I have already indicated—I am sorry that this information does not seem to have reached him—that I was not proposing to speak to or move Amendments 81B or 81C.

Lord McNally: That is why I glanced up at the annunciator. I was hoping to get guidance. I had received that message, for which I thank the noble Lord.

This Bill provides the Lord Chancellor with the power to make rules enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser, and to delegate the functions that a legal adviser may perform to an assistant legal adviser. The Government wish to emphasise that the intention is that legal advisers and assistant legal advisers to the family court will not make decisions which are final or conclusive to the parties’ rights save for one proposed exception on which I will touch in a moment.

Ministry of Justice officials are still in discussion with the judiciary and with Her Majesty’s Courts and Tribunals Service over which powers should be delegated to legal advisers and assistant legal advisers. They are working closely with the Family Procedure Rule Committee to finalise details of the powers that will be contained in the secondary legislation which will be put before Parliament. I should remind the House that the first exercise of this rule-making power will be subject to the affirmative procedure, as the noble Lord said.

As a starting point, we are intending to replicate for the family court the existing functions which a justices’ clerk can perform in place of a single justice of the peace in family proceedings in the magistrates’ court. There are also a number of other functions which we envisage could be carried out by a legal adviser or assistant legal adviser in the new family court. Examples of the type of functions which we are considering delegating include allocation decisions, review hearings in private law applications and case management hearings

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in public law cases. We also envisage that legal advisers and assistant legal advisers to the family court will play an important role in the gatekeeping teams who will determine the allocation of cases to different levels of the judiciary in the new family court. Clearly, in the world of the family court there will be an extension of current powers as currently only functions which can be done by a single justice of the peace are to be delegated to legal advisers, whereas in the family court the legal adviser may be exercising functions of any level of judge. However, I note that such an extension is perhaps inevitable given the nature of the family court, and the Family Justice Review recommended that there should be flexibility for a legal adviser to conduct work to support judges across the family court.

I also want to reassure noble Lords that this rule-making power can be exercised only with the consent of the Lord Chief Justice and after consulting with the Family Procedure Rule Committee. The proposed exception to the rule that legal advisers will not make decisions which are final or conclusive to the parties’ rights was developed from the Government’s response to the Family Justice Review. The Government responded to that review, accepting the recommendation to allow uncontested divorce applications to be dealt with administratively. The proposal to delegate functions in uncontested divorce cases to legal advisers will ensure that the case is considered by someone who is legally qualified and trained.

I stress that I understand that this proposal in relation to uncontested divorces has the general support of the judiciary, subject to working through points of detail and ensuring that there is access to district judges to discuss any concerns. We are working with the judiciary to ensure that they are content with the system. The implementation of this proposal will be facilitated by further changes to primary legislation, which will be taken forward in the children and families Bill. There will therefore be further opportunities for the House to debate this issue.

We want legal advisers and assistant legal advisers to be able to carry out these functions in order to free up the judiciary to deal with more complex cases. This should achieve increased judicial continuity, reduce the time taken to deal with non-complex cases, and will, we hope, cause less distress for children involved.

I hope that that brings the House up to date with where we are. Some of it is work in progress, but the ultimate aim, as I have indicated to the noble Lord, Lord Beecham, my noble friend Lady Hamwee and the House is to get a more efficient system which uses judicial time more effectively. I am grateful for the noble Lord’s assurance that he will not divide the House on this matter.

4.30 pm

Lord Beecham: I am grateful to the Minister for that very full reply, which is to a large extent reassuring. I hope that consultations with practitioners, particularly, for example, with the Family Law Practitioners’ Association, will be part of the exercise that he has just described. I look forward very much, as I am sure others do, to seeing the proposals in more

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detail in the manner that the Minister has described. In the circumstances, I beg leave to withdraw the amendment.

Amendment 81A withdrawn.

Amendments 81B and 81C not moved.

Amendment 82

Moved by Lord McNally

82: After Schedule 11, insert the following new Schedule—

“Gang-related injunctions: further amendments

1 Part 4 of the Policing and Crime Act 2009 (injunctions to prevent gang-related violence) is amended as follows.

2 After section 46A insert—


46B Appeals against decisions of youth courts

(1) An appeal lies to the Crown Court against a decision of a youth court made under this Part.

(2) On an appeal under this section the Crown Court may make—

(a) whatever orders are necessary to give effect to its determination of the appeal;

(b) whatever incidental or consequential orders appear to it to be just.

(3) An order of the Crown Court made on an appeal under this section (other than one directing that an application be re-heard by a youth court) is to be treated for the purposes of section 42 as an order of a youth court.”

3 In section 48 (rules of court in relation to injunctions under Part 4)—

(a) in subsection (2) (rules of court may provide for appeal without notice) omit “of the High Court or county court”, and

(b) in subsection (3) (decisions to which subsection (2) applies) for “applies to a decision” substitute “applies—

(a) to a decision under section 39(4)(a) that an application without notice be dismissed, and

(b) to a decision”.

4 In section 49(1) (interpretation of Part 4) after the definition of “court” insert—

““judge”, in relation to a youth court, means a person qualified to sit as a member of that court;”.

5 In paragraph 1(2) of Schedule 5 (courts’ powers to remand person suspected of breaching injunction: meaning of “the court”)—

(a) for “High Court or” substitute “High Court,”,

(b) before “and includes” insert “or a youth court”,

(c) omit the “and” following paragraph (a), and

(d) at the end of paragraph (b) insert “, and

(c) in relation to a youth court, a judge of that court.”

6 Schedule 5A (breach of injunction: powers of court in respect of under-18s) is amended as follows.

7 (1) Paragraph 1 (power to make supervision order or detention order) is amended as follows.

(2) In sub-paragraph (1) (pre-conditions for making of supervision order or detention order)—

(a) in paragraph (a) for “is” substitute “has been”,

(b) before the “and” after paragraph (a) insert—

“(aa) the person is still under the age of 18,”,

(c) in paragraph (b) for “the court” substitute “a youth court”, and

(d) in the words following paragraph (b) for “the court” substitute “that court”.

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(3) Omit sub-paragraph (3) (power to grant supervision order or detention order is in addition to any other power of the court in relation to breach of injunction).

(4) In sub-paragraph (9) (interpretation of Schedule 5A) omit the definition of “appropriate court”.

8 In paragraph 4(11) (appropriate court may amend activity requirement in supervision order) for “the appropriate” substitute “a youth”.

9 In paragraph 5(5) (appropriate court may amend curfew requirement in supervision order) for “the appropriate” substitute “a youth”.

10 In paragraph 6(7) (appropriate court may amend electronic monitoring requirement in supervision order) for “the appropriate” substitute “a youth”.

11 In paragraph 8 (amendment of operative period of supervision order)—

(a) in sub-paragraph (1) (appropriate court may amend operative period) for “The appropriate” substitute “A youth”, and

(b) in sub-paragraph (2) (court may make other amendments when amending operative period) for “The court may,” substitute “A youth court may,”.

12 In paragraph 9(1) (change of area of residence of person subject to supervision order) for “the appropriate” substitute “a youth”.

13 In paragraph 10(1) and (4) (application for revocation of supervision order to be made to appropriate court, and any further such application requires that court’s consent) for “the appropriate” substitute “a youth”.

14 In paragraph 12 (non-compliance with supervision order)—

(a) in sub-paragraph (2) (injunction applicant may apply to appropriate court on being informed of non-compliance) for “the appropriate” substitute “a youth”,

(b) omit sub-paragraph (5) (no power to make further order if defaulter is aged 18 or over), and

(c) omit sub-paragraph (6) (powers to revoke supervision order etc are in addition to any other powers of court in relation to breach of supervision order).

15 In paragraph 15(1) and (4) (application for revocation of detention order to be made to appropriate court, and any further such application requires that court’s consent) for “the appropriate” substitute “a youth”.”

Amendment 82 agreed.

Clause 18 : Judicial appointments

Amendment 82A

Moved by Lord Lloyd of Berwick

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

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

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

Secondly, we are all in agreement that we need greater diversity at all levels; that is to say, we need more women judges and ethnic minority judges, whether men or women. Happily, things are a good deal better

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in this regard today than they were 15 years ago. I will come back to the figures a little later. However, we all agree that still more diversity is desirable.

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

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

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

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

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

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

I could not agree more.

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

Noble Lords: Order!

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

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

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

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

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

“available from the top to the bottom of our judicial system”.—[

Official Report

, 25/6/12; col. 101.]

He added:

“I cannot think of a better message”.

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

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

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

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

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woman who had not already served in the High Court and the Court of Appeal, once described as the only form of slavery not abolished in the 19th century?

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

4.45 pm

Lord Woolf: My Lords, I am most grateful for the manner in which the noble and learned Lord, Lord Lloyd, has addressed the House. I strongly endorse every word that he has said. I support the amendment, to which I have added my name. I want to reaffirm what he said about the desire of the senior judiciary and successive Lord Chancellors to achieve greater diversity. As I see it, any objection to anything that would improve diversity has to be approached with caution. However, I say, without hesitation, that I do not believe that what is proposed at the moment with regard to part-time judges in the Court of Appeal and in the Supreme Court will achieve what we want. All it will do is give false expectations that cannot possibly be fulfilled.

The difficulty of accommodating part-time judges is very real but it can be done, and has been done, in the lower courts. However, the Court of Appeal and the Supreme Court are conducted in an entirely different way from what happens in the lower courts. What is more, their diet is different. Before I addressed the House today, I took care to speak to Sir Anthony May because for seven years, part of which time I was the Lord Chief Justice, he was the judge who had the heavy responsibility of determining how the courts would be staffed. His conclusion was that to try to adopt the proposal of part-time judges in appellate courts would create a nightmare—that is his word. Already it has been accepted that the High Court should be able to make progress, if possible, in that respect. I have reservations about whether that could be achieved in the High Court and Sir Anthony shared my reservations in that regard.

If that were to be implemented in respect of the Court of Appeal and the Supreme Court, would the position with regard to diversity be improved or would this be nothing more than a gesture, and one wholly without substance? If so, I do not believe that anyone who really wants to see diversity would welcome this provision. I know of no supreme court where part-time

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judges take part; likewise, I do not know of any court of appeal where part-time judges are appointed. In essence, their work is not appropriate for what could truly be called part-time judges.

However, while I entirely agree about the possibilities of flexibility, we are already extremely flexible in our approach to the use of our judges. It is only because of flexibility that, for example, we can enable judges to conduct inquiries more and more frequently, as has happened of late. If we were not flexible, that would not be possible. Likewise, in the current conditions of international co-operation between judiciaries of different countries, it is necessary for judges to meet in different countries and for there to be a constant programme of change and discussion between judiciaries of different jurisdictions. Diversity is a matter that they are concerned about but they, as far as I know, have no proposals of this nature.

I observe that later amendments propose to place a duty on certain senior judges to promote diversity. If it is thought that that duty is necessary, I am all in favour of it. I personally have doubts as to whether that duty will add to what they are already trying to do but I see no problem with it appearing in the statute. But I certainly urge the Minister to consider whether this suggestion is realistic.

Part-time working could even have an adverse effect on diversity. When I have discussed diversity with former colleagues, I have noticed that senior judges, who are finding the work very hard for the reasons indicated by the noble and learned Lord, Lord Lloyd, feel that it might be rather nice to have a couple of months off from time to time. In fact, it would be much better for judges who are finding the work overburdensome to retire rather than work part time. If they retire, they allow other judges to come forward and be promoted to courts such as the Court of Appeal and the Supreme Court. If they remain, that is not the case.

Once a judge retires, as long as he is under the age of 75, when you become statutorily senile, it is possible to be used from time to time—as much as the former judge wishes—when there is a need for an additional judge to help the administration of justice. Many judges sit in that way in the Court of Appeal and in the Supreme Court. That is just one more example of the flexibility that can be achieved without the need for legislation. I urge the Minister to take advantage of this opportunity to look again and, at least, decide not to keep in the statute a provision of this sort relating to part-time employment of judges in senior courts.

Lord Carswell: My Lords, Plato said:

“Wise men talk when they have something to say; fools because they have to say something”.

I hope that what I have to say will fall into the former category, but having heard what the very experienced and authoritative noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, said, I will make my point short, simple and direct in support of the amendment.

I had quite a long time—a good number of years—in appellate courts, and for seven years as Lord Chief Justice of Northern Ireland I was closely concerned with appointments. I am wholly and unequivocally in

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favour of promoting women to the posts that they should occupy. It follows that I am equally in favour of any flexible means of working that will effectively promote that objective. The intention behind the clause is admirable, but I am afraid that it simply will not work. The reason is simple. It was suggested by one or two noble Lords in Committee that most of the cases in the Supreme Court are of two days or fewer so there is really not a problem. I regret that it is not as simple as that.

The figures given to me by the Supreme Court are that in the first three years of its existence—which have just elapsed now—there were 168 cases heard. Of those, some 33 occupied more than two days. That is almost 20%. In itself that is not an insignificant proportion, but the really important thing is that virtually all of those longer cases were the most significant, important, demanding and difficult cases that the justices had to try. They are the ones which everybody should be available to take part in when required. If a judge is part-time and would not be available to take part in the longer and harder cases because of the length of time they occupy, it is damaging to collegiality—the team spirit of the court, if you like.

From experience, I can assure your Lordships that that is an important factor. If a judge cannot play, let us say, in the Premier League matches, there would be a feeling that he or she—and we are really talking of “she”—cannot pull their weight and that they are in some way second-string judges, though they may be very able people. They will feel that they are not really there at the party; the other judges may feel that too if they are carrying the burden. That is undermining to the spirit and effectiveness of the court and of the part-time judges.

I entirely agree that it is important to recognise and tackle this problem and to find ways of improving the promotion of women to the highest positions, which they should be occupying. I will not weary your Lordships with the ways that have been suggested. My noble and learned friend Lady Butler-Sloss spoke in Committee about this. There are ways, if they are properly, fairly and conscientiously followed by the appointing authorities. While the intention behind the present provision is excellent, the way adopted by the Bill of putting it forward with part-time judges is a mistake. It will not work and I support the amendment.

Baroness Butler-Sloss: My Lords, I am an early example of judicial diversity. I became at one time the senior woman judge in the country until the noble and learned Baroness, Lady Hale, became a member of the Supreme Court. It is inevitable, therefore, that I would support flexibility, but I do not support the term “part time”.

I combined being a judge at four different levels, including the Court of Appeal but not the Supreme Court, with trying to manage childcare. I did not seek time off, but I can see the advantages of having it from time to time. I certainly do not see the need to have it on a weekly basis. For the reasons that the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, have already set out, I question how far it is sensible to try to go along the path that the Government wish to pursue. There are real problems about it, certainly

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in relation to the senior judges. There will inevitably be an adverse impact on full-time judges if they have genuine part-time judges sitting in the Court of Appeal with them. It may be that the Supreme Court, where I do not have experience, does not sit very much more than two or three days, but it is not at all unusual to sit in the Court of Appeal for more than a week. Which judge who is genuinely part time—say, doing three days a week—would be able to take on a case of any length? It would mean that a full-time judge would have to take those cases. Inevitably, there would be a degree of resentment and, indeed, as the noble and learned Lord, Lord Carswell, said, a part-time judge might not feel part of the party.

I sat in the Court of Appeal on a number of long cases. If, when I was President of the Family Division, I had been asked whether some of my 19 judges could work part time or on flexible working for two or three days a week, with High Court judges being sent out on circuit sometimes for as long as six weeks at a time as Family High Court judges, it would have been, as Sir Anthony May said to the noble and learned Lord, Lord Woolf, a nightmare. I would not like the next President of the Family Division even to have to contemplate such a thing among the duties that he or she might have to take on. In suitable cases, there is no doubt that there can be flexibility. If people are in difficulties, they should be accommodated, and they are accommodated. Many years ago I recall a High Court judge whose wife had died unexpectedly and he was left with young children. Very considerable accommodation was made so that he was able to deal with his rather traumatic family life as well as continuing to sit as a High Court judge.

I would also say that the concept that the top court in the country is going to be part time is rather odd. What would be the message going out to the public—that the judges who matter most in the country are actually part time? I find that very odd indeed. Following on from what other noble Lords have said, I think that diversity can be achieved for women and for ethnic minority men and women who have not yet been referred to, although I hope that a number of them will come through to the Supreme Court—some of them certainly deserve to do so in due course. The flexibility that noble Lords have been talking about can and ought to be achieved without using the term “part time” as it sends out entirely the wrong message to everyone within the judiciary and those without.

I am particularly concerned that the Judicial Appointments Commission may feel obliged to appoint part-time judges because that is what it says in the legislation. If the commission appoints judges and then allows the Lord Chief Justice, the heads of other divisions or the President of the Supreme Court to be understanding when a particular judge wants to take some time off, that is infinitely preferable. I will not say any more about the fact that in any event this is not going to happen, probably for a generation.

5 pm

The Earl of Listowel: My Lords, as treasurer of the All-Party Parliamentary Group for Children, I hope that I can say a brief word in support of the consensus across the House in favour of allowing parents flexibility.

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That is very heartening to me. At the early years conference hosted by the Daycare Trust earlier today, a practitioner complained that many children are now put into school at eight o’clock in the morning and are not collected until five or six in the evening. In my experience of caring for children, when some young people have to stay on past the end of the school day, they are very tired and unhappy because they have been left behind. It is encouraging to hear the whole House agree that, whatever the detail may be, we need to allow parents flexibility in their employment for the benefit of their children. I hope that the Government will continue to make more opportunities for flexible employment available to parents and increase parental leave.

Lord Pannick: My Lords, I am in the position which is often that of dissenting judges in the Court of Appeal who say that they have the misfortune to disagree with their judicial colleagues. Eminent though the previous speakers are, I cannot support these amendments. Your Lordships’ Constitution Committee, of which I am a member, reported on judicial appointments in March this year. We set out the scale of the problem. The problem is that about 16% of High Court judges and only 11% of Court of Appeal judges are women. Only one member of the Supreme Court’s 12 justices is female. We found that one of the reasons why there are so few women on the Bench at High Court level and above is the inflexibility of the working arrangements. We observed that there are increasing proportions of women at senior levels in all other professions and that this has occurred in recent years, in part, because of the increasing use of flexible working hours. We concluded that, for the number of women within the judiciary at the highest levels to increase significantly, there needs to be a firm commitment to flexible working and a recognition that many women will want to work part time for family care reasons.

The noble and learned Lord, Lord Lloyd of Berwick, was concerned to emphasise in his remarks at the beginning of this debate that he is in favour, of course, of flexible working: it is part-time working to which he objects. However, I say to the noble and learned Lord that a part-time worker is simply one who needs to work flexibly on a regular basis because of continuing family care commitments that arise every week of the year.

Lord Howard of Lympne: Can the noble Lord tell the House to what extent the commendable progress, to which he referred, that has taken place in other professions has been a result of a statutory provision requiring part-time appointment?

Lord Pannick: I am not suggesting that it has. The problem, as the noble Lord will recognise, is that the judiciary is way behind other professions in securing that women are represented in high proportions at the senior level. Of course, there is the utmost commitment of those in senior positions to do all they can. This is a fiendishly difficult problem but part-time working has been recognised as one of the central means by which women are able to combine family care commitments with progressing in a profession.

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Lord Woolf: Perhaps my noble friend, who regularly appears in the Supreme Court and is familiar with many of its judges, can help us as to how many of them have family commitments.

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

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

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

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

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

Baroness Warnock: My Lords, I had no intention whatever of entering this debate but it seems to me that there is quite a serious analogy here between the teaching profession at the top level and the legal

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profession. There is no doubt that in a school, particularly a boarding school, part-time members of the staff, although they are respected and have authority, are not regarded as the most senior, reliable and ready to sacrifice their time. They are not, in fact, of the same level of authority as the full-time members of staff. Nothing would be more destructive of the trust which the general public have in the senior judiciary than if the Supreme Court were divided among the “real” members and the “unreal” members—the part-timers who could not take on the really difficult and complicated cases.

I rely on this analogy strongly to support the amendment of the noble and learned Lord, Lord Lloyd, because I believe that, for one thing, it is quite uncertain that this provision would have the apparently desired effect of encouraging more women to come forward; and quite apart from that, it would have the disastrous consequence of dividing the Supreme Court between the top and the lower levels.

Baroness Neuberger: My Lords, not being a lawyer, I enter this debate with a certain amount of nervousness. However, I did chair the Advisory Panel on Judicial Diversity, and I support everything that my noble friend Lord Pannick said. I disagree with the amendment for one very important reason. I want to add to what my noble friend said one important fact which comes from the evidence that the panel took from individuals and various bodies when compiling our report.

You could not put a sheet of paper between the six members of the panel, one of whom was a Court of Appeal judge, in our clear belief that flexible working ought to be available to the most senior levels. We did not necessarily use the word “part-time” because we thought that there were other ways of doing it rather than the conventional two days on, three days off. When we spoke to women who were thinking about whether they should apply to the Judicial Appointments Commission to go to the High Court, we were told time and again that unless some form of flexible working was available, they would find it very difficult.

5.15 pm

I very rarely disagree with the noble and learned Baroness, Lady Butler-Sloss. However, most of these women were at a level where it was not about children but aged parents, and they said that they might well need to work nine or 10 months of the year rather than 12 months; that they shared care of aged parents with siblings but there was a time when they would need to be fully responsible and therefore would not be able to be fully committed to the work. I cannot believe that in this society we cannot recognise that people—women, men, whoever they are—should be able to perform their family responsibilities and work at the most senior levels in our judiciary. That should be a message that our senior judiciary sends out.

Lord Clinton-Davis: I speak as a mere solicitor, but I very much support everything that the former members of the Supreme Court and other members of the judiciary have said. It is absolutely essential that we

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should retain flexibility. I am usually on the same side as the noble Lord, Lord Pannick, but not on this occasion. Flexibility is a better word than the one that the Government are using.

Attracting part-time judges in the higher courts will not happen. If it does happen, it will not be to the credit of the higher courts. I support women in every area of work. Women have been an invaluable resource as far as the solicitors’ profession is concerned. Why should they not inhabit the Supreme Court and other higher courts in the land? It would do us a great favour if that were to happen.

Baroness Hamwee: My Lords, I very much agree with the noble Baroness, Lady Neuberger. I, too, feel a great sense of trepidation, also being a “mere” solicitor, non-practising.

It is very rare that I agree with those who have spoken on the other side of this argument but I want to respond to the point that has been made about the perception of women who wish to work flexibly. My own experience has been that those who work to a slightly different pattern almost invariably turn themselves inside-out to work harder than is humanly possible in order to make it quite clear that they are not taking advantage of the arrangements that have been made for them.

In this walk of life, as in any, if we deny that cohort of people the opportunity, we are not only denying them, we are denying the whole of society the opportunity to use their life experience as well as their professional experience.

Lord Beecham: My Lords, I join my two fellow members of the junior branch of the profession with equal trepidation. We have heard from four most distinguished noble and learned Lords, all of whom support the amendment.

Last night I was lobbied, perfectly properly, by the noble and learned Lord, Lord Lloyd, who drew my attention to the constant use of the word “flexibility” in the debate which took place some five months ago. It is true that the word was used but I am not sure that it was used in the sense that the noble and learned Lord perhaps implies, contrasting with the word “part-time”. When we discussed the matter I said that I was not quite sure what the difference meant in practice. I am still not sure what difference the noble and learned Lord would construct between the two.

The noble and learned Lord quoted two or three Members of your Lordships’ House as using the term “flexibility”. He mentioned, for example, my noble friend Lady Kennedy. She did use that word. At one point in the debate, at col. 92, he asked my noble friend a question. He said:

“Much of what she said dealt with flexibility. I think that everybody in the House is in favour of maximum flexibility … The real question is whether flexibility demands part-time judges. The view of some of us is that it does not”.

We have heard this today most eloquently from the noble and learned Lord and from other noble and learned Lords. My noble friend replied:

“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”.

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That “it”, of course, is the question of part-time service. She continued:

“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’”.

This was precisely the point made by the noble Baroness, Lady Neuberger. My noble friend went on:

“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”.—[Official Report, 25/6/12; col. 92.]

That is perhaps an answer to my noble friend Lord Clinton-Davis.

The noble and learned Lord also referred to my noble and learned friend Lord Falconer—who made but a fleeting appearance, unfortunately, in the Chamber this afternoon. I would have been delighted to give way to him for the purposes of this debate and, indeed, possibly to some others. My noble and learned friend Lord Falconer spoke in some detail and also rather deprecated the use of the term “part-time”. In the conclusion to his remarks, he said:

“So if we were to agree to a provision that allowed part-time or flexible working members of the Supreme Court … 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”.

My noble and learned friend treated “part-time” and “flexible” working as much the same thing. In the real world, surely that must be right. He concluded:

“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”.—[Official Report, 25/6/12; col. 101.]

My noble and learned friend said that the Opposition endorsed the proposals in the Bill, and we do again tonight.

Having never appeared before a tribunal higher than the county court I speak with some trepidation. However, I take some comfort from the experience of my noble and learned friend Lord Falconer, my noble friend Lady Kennedy and, in particular, the noble Lord, Lord Pannick, who has again eloquently made the case.

We are looking at flexible working that would necessarily involve—to avoid the use of the dreaded phrase “part-time”—less than full-time working. It seems to me that that is consistent with the objectives that have been outlined by noble and learned Lords who have supported the Government’s position. If it is of any comfort to the Minister, that will be the position should a Division be called: we would support the Government. We think that this is an imaginative forward step in the judicial system. We have every confidence that the people who are appointed to that very senior position will discharge it to the best of their obviously very considerable ability and with the utmost conscientiousness. I have no fears about that or about the capacity of the system to cope with what would inevitably be a relatively modest number of people occupying senior positions of that kind in the Court of Appeal and the Supreme Court.

On this occasion, the Minister and I are at one —which is perhaps, subsequently, a matter for some modest celebration.

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Lord McNally: My Lords, it is perhaps a matter for a more than modest celebration. There was a time at the beginning of this debate when a former Law Lord, a former Lord Chief Justice, a former Lord Chief Justice of Northern Ireland and a former President of the Family Division had all spoken in quick succession to oppose this, and I thought, “My goodness, I’m in trouble here”. But then, over the hill like the 7th Cavalry, came the noble Lord, Lord Pannick, which is not a position he always occupies when viewed from these Benches.

This has been an interesting debate. Of course we have to listen carefully to the experience of those who have occupied senior judicial positions when we discuss a matter such as this. I shall make one or two points on the points made. The noble Baroness, Lady Warnock, called in evidence the teaching profession. I do not have experience of the teaching profession, so she can make her point, but over the past two and a half years I have had experience of the senior Civil Service, and I can compare it to when I had direct experience of the senior Civil Service in the mid-1970s. I have made the point before at this Dispatch Box: the thing that I notice most about the senior Civil Service now is its diversity, in both ethnicity and gender. Quite honestly, I do not know whether the senior adviser who is giving me advice is working flexibly or part time, and I do not really care. It is the quality of what they give. I do know, because they tell me, that because of the flexibility that has been introduced into the senior Civil Service many more women have been able to remain and to climb the ladder within the senior Civil Service. That has to be weighed in evidence in any comparison with other professions.

I also point out that, as the noble Lord, Lord Pannick, said, the powers we are seeking are permissive, not mandatory. That is an important point. I am very grateful to the noble Lord, Lord Beecham, for his intervention. He explained very carefully the interplay between flexible and part-time. I was also pleased by the intervention of the noble Baroness, Lady Neuberger. In weighing the serious evidence that was produced by the experienced former members of the judiciary, it is worth remembering that both the inquiry chaired by the noble Baroness, Lady Neuberger, and the Constitution Committee, of which the noble Lord, Lord Pannick, was a member, came down in favour of what we are trying to do.

As the noble Earl, Lord Listowel, indicated, there is general acceptance of the importance of part-time and flexible working to promote greater diversity in our modern society. The Government firmly believe that this is as true of the senior judiciary as it is of other areas of employment. These amendments would prevent us extending the benefits of flexible working to the Supreme Court and the Court of Appeal. The Government believe that the introduction of part-time working—

5.30 pm

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

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Lord McNally: I thought that the noble Lord, Lord Beecham, had covered that point. We have gone through this in two fairly extensive debates. I say with a degree of confidence, given what the noble Lord, Lord Beecham, has just said to me, that if the noble and learned Lord insists on testing the opinion of the House again, he is, of course, entitled to. However, I understand the interchangeability of flexibility and part-time, which the noble Lord, Lord Beecham, very clearly explained.

Baroness Butler-Sloss: I thank the Minister and I shall be brief. Does the Minister see the distinction between a judge who will sit, say, three days a week and the situation that I vividly recall in the old Lord Chancellor’s department, with two absolutely admirable women who shared the week? That was great, they did it extremely well, but it would be very difficult for two judges to share the week, particularly if they had three months off to do inquiries. I did several inquiries and had to take months off. It is the three days a week that would be the difficulty, I suggest to the Minister, and that is what part-time really sounds like.

Lord McNally: No: it is not prescriptive and we would test and think very carefully about how it would be approached. Some of the points that have been made this afternoon will be taken into account in seeing how this will apply. I reject the idea that this is a gesture without substance, as the noble and learned Lord, Lord Woolf, suggested. The noble Lord, Lord Pannick, quoted the Constitution Committee’s findings which bear repeating,

“as the minimum change necessary. For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working and the taking of career breaks which we believe is currently lacking”.

Salaried part-time working has been in place in the courts below the High Court and tribunals for a number of years and it is important that we do not allow a known glass ceiling to remain in place preventing part-time judicial office holders from progressing further up the judicial career ladder. These provisions do not mandate that there must be an office holder who works part-time in either the Supreme Court or Court of Appeal; instead they remove any impediment that would prevent eligible candidates who work flexibly in the lower courts from applying for appointments to those courts.

There would be something problematic in a situation whereby the most meritorious candidate for the Court of Appeal or the Supreme Court was not able to accept an offer of appointment simply because we could not accommodate part-time working. In the 21st century that would be hugely embarrassing and, quite frankly, wholly at odds with the change in culture we are all seeking as the key driver towards a more diverse judiciary.

Some have argued that the work of these higher courts naturally precludes the ability of judges to work flexibly. It has been suggested that flexible working would disrupt the processes of the court and make life difficult for listing officers. The Lord Chancellor is not persuaded by this argument. The Lord Chief Justice was questioned on this very issue when he gave evidence before the Constitution Committee.

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He did not see any problems with organising sitting patterns in order to accommodate judges with caring responsibilities.

The Government’s consultation on judicial appointments and diversity focused on flexible working in the High Court and the Court of Appeal. The proposals received near unanimous support. However, a number of key stakeholders also highlighted in their responses that extending the principle of flexible working to the Supreme Court would demonstrate our commitment to improving diversity to those considering applying and we have therefore extended our proposals accordingly to include the Supreme Court.

Given the strong support for the provisions within the House and beyond I invite the noble and learned Lord, Lord Lloyd, to withdraw his amendment. However, if he is minded to test the opinion of the House, I urge noble Lords not to support the amendment.

Lord Mackay of Clashfern: For clarification, who would decide the nature of the appointment when a vacancy arises in, say, the Supreme Court? Would it be for the president of the Supreme Court to say, “I will take two part-time judges who will each sit half-time”, or would it be somebody else who would decide? It is a practical matter. I can see the arguments about it all and I see the general view in this House, but I would like to know how it would work in that sense; who would have the responsibility, ultimately, of saying what would be the pattern in a particular court. Is it the president of that court or somebody else?

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

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