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Supreme Court: President

Volume 732: debated on Wednesday 16 November 2011


Asked By

To ask Her Majesty’s Government whether they have plans to amend the Constitutional Reform Act 2005 so that the president of the Supreme Court is not required to chair the selection commission for the appointment of his successor.

My Lords, the noble Lord will be aware that this is one of the matters being considered by the Constitution Committee of this House under the chairmanship of the noble Baroness, Lady Jay. However, the Government are committed to implementing the recommendations of the Advisory Panel on Judicial Diversity, which was chaired by my noble friend Lady Neuberger, including the recommendation that no judge should be directly involved in the selection of their successor. We are considering this issue along with the evidence presented to the House of Lords Constitution Committee and will shortly start a broader consultation on the matter.

I am grateful for that very helpful answer. Does the Minister appreciate that there is some urgency about this because the president of the Supreme Court, the noble and learned Lord, Lord Phillips of Worth Matravers, is retiring next summer? I think that the Minister is saying that he agrees that it is highly undesirable that a retiring judge, however distinguished, should play so significant a role in the appointment of his successor. Can he please indicate that there will be some urgency in the way in which the Government deal with this?

There will indeed be urgency and, as the noble Lord knows, we have had some very good advice on the matter from the noble and learned Lord, Lord Phillips, himself.

My Lords, perhaps I may say how much we on the opposition side welcome the Minister’s response to the noble Lord, Lord Pannick. If the Government will act urgently on the point that the noble and learned Lord, Lord Phillips, has spoken about, we will do everything that we can on our side to make sure that such a matter goes through Parliament as quickly as possible. Perhaps I may ask briefly about judicial diversity, in which I know the Minister has a particular role. Are the Government satisfied that they are doing enough to make sure that our judiciary is diverse enough? Many judges at all levels have spoken about this in recent weeks and it is a matter of considerable concern.

I thank the noble Lord for his initial remarks about co-operation, which will again help with the sense of urgency. On the question of judicial diversity, one of the most encouraging things in recent days is the way in which members of the senior judiciary have been going public on the need for urgency on the matter. It is a fact that four members of our 161 judges in the High Court are of black, Asian and minority background. In England and Wales, four out of 42 members of the Court of Appeal are women and we have one woman on our Supreme Court.

Will my noble friend consider that what we need on the judges’ Bench are the best judges? They should be selected solely and absolutely on merit and there should be no more talk of integration and diversity among judges than among Olympic athletes.

My Lords, I could not agree more with my noble friend. The difficulty is that sometimes the idea of choice on merit slips into “chaps like us”, and that is what must be avoided.

My Lords, do the Government have any view on the so-called tie-break principle, whereby if there are two candidates of entirely equal merit there will be a favouring of either female applicants or members of the ethnic minorities?

Yes, my Lords. This is often called the “tipping point” criterion: whether, if there are two candidates of absolutely equal merit, the one from the black and ethnic community or the woman should be given the post. I go back to the point made by the noble Lord, Lord Tebbit, that the aim should be to get the best person for the job. That is something that I believe in but, if there are two candidates of absolutely equal merit and one is a woman or from the black and ethnic minorities, you might take into account that they have had a greater struggle to reach that point of merit. That may come into your final conclusion.

May I question the Minister’s view that diversity has been sufficiently practised by the Government and is being pushed in the way in which it is being pushed in discussion in this House? The most recent appointments to the UK Supreme Court were of two men: one came up the usual route from the Court of Appeal and was promoted; the other has not had any full-time judicial experience but is a distinguished Queen’s Counsel. Those are the most recent appointments, yet, as the Minister himself said, there are several women members of the Court of Appeal. Are they being sidelined?

I do not think one should take a snapshot of the last two appointments and say that means that there is no diversity. There will be four appointments to the Supreme Court in the next 24 months. Let us wait and see.

Where there are two candidates of absolutely equal merit, is it not the case that the appointing body only has one of two choices: either to toss a coin or to apply the relevant provision of the Equality Act?

My Lords, is it not comforting that one of the latest appointments to the Supreme Court has written a definitive history of the Hundred Years’ War?

Indeed. I always go along with the dictum of Denis Healey—the noble Lord, Lord Healey—that you should look for people with hinterland.

My Lords, do the Government acknowledge that the combination of high tuition fees and the cuts in legal aid will have a very bad impact on diversity at the young end of the legal profession, especially the Bar, and that there will be less diversity in years to come unless it is made possible for young people of all backgrounds to get a start at the Bar?

We will be debating in the near future the cuts in legal aid. Where I do share concerns is that to get into the legal profession, whether as a barrister or a solicitor, requires a financial commitment that could have an adverse effect on social mobility. That is something that the Government will have to address.