I am grateful to my hon. Friend the Member for Darlington (Jenny Chapman) for her remarks in support of amendment 100, which we have tabled along with other hon. Friends, and to the Solicitor-General for what he had to say in anticipation of my remarks. I look forward to his acceptance of my amendment and to the other changes, which I broadly endorse, to the 2005 arrangements for judicial appointments.
The Supreme Court of the United Kingdom has 12 justices. Just one has been a woman—Baroness Hale. Towards the end of last year, three vacancies on the Supreme Court bench arose. A special panel, as provided by the Constitutional Reform Act 2005, was established to fill those vacancies. I am quite sure that the panel applied itself to the highest standards for the selection process. The candidates who were successful are all jurists of the highest quality. Their names were announced last month. All three are men. So this country’s highest court will, for the foreseeable future, continue to be composed of 11 men and one woman. Therein lies the problem.
As the President of the Supreme Court, Lord Neuberger, said last year in evidence to the House of Lords Constitution Committee,
“if…women are not less good judges than men, why are 80% or 90% of judges male? It suggests, purely on a statistical basis, that we do not have the best people because there must be some women out there who are better than the less good men who are judges.”
The figures are stark: the further up the judicial ladder you go, the fewer and fewer women there are to be found.
My hon. Friend the Member for Darlington referred to the important lecture that Baroness Hale gave recently. Baroness Hale set out the figures:
“22.5% of the judges in the ordinary courts…are women and 4.2% are British minority ethnic…Only 26.6% of the upper tribunal judiciary are women, though 11% are BME.”
When we get to the High Court, just 15% are women and 4.5% BME; 10% of Court of Appeal judges are women; none is black or Asian. She said that
“none of the five heads of division is a woman or BME; and in the Supreme Court there is still only me and the only ethnic minorities we have are the Scots and the Irish…The average”—
for judiciaries—
“across the countries in the Council of Europe is 52% men and 48% women. At 23% England and Wales is fourth from the bottom, followed only by Azerbaijan, Scotland and Armenia.”
These days everyone—more or less—agrees with Lord Neuberger’s sentiment that women are just as qualified to do any job, including the top jobs, as are men. The problem is that, for the judiciary, the system is simply not delivering the equality of outcome that we all seek. It was supposed to do so. When the current statutory system of judicial appointments was established in 2005, one of the arguments advanced for the new, independent Judicial Appointments Commission was that it would be able to advance the diversity of the judiciary in terms both of gender and of ethnicity.
Initially, progress with that commission was frustratingly slow, as both I, as Lord Chancellor, and my permanent secretary, Sir Suma Chakrabarti, repeatedly made clear to its then chair. I happily concede that there have been some more recent improvements, and I know of the personal commitment of the new chair, Chris Stephens,
to see the commission do better, and of the steps he is taking. Those steps are necessary but, with respect to Mr Stephens, they are not in my view sufficient.
Part of the problem has been the wording of the 2005 Act, which requires the Judicial Appointments Commission to select solely “on merit”. I will come back to that loaded concept in a moment. The Bill seeks to qualify “on merit” by a provision in part 2 of schedule 13 which essentially allows the commission, where it judges that there are
“two persons of equal merit”,
to choose the woman, or the black or Asian candidate.
I am not cavilling, and that provision may help a little, but some of this country’s much better legal brains than me tell me that it can only help a little, since “merit” is likely to be narrowly defined for these purposes. Indeed, one of Lady Hale’s colleagues on the Supreme Court, Lord Sumption, has challenged the whole idea of equal merit. He was formerly a member of the Judicial Appointments Commission, and he said that at the
“upper end of the ability range there is usually clear water between every candidate once one looks at them in detail.”
He went on:
“If you dilute the principle of selecting only the most talented candidates by introducing criteria other than individual merit, you will by definition end up with a bench on which there are fewer outstanding people. But there is a more serious problem even than that. It is the impact that the change would have on applications.”
Happily, Lord Sumption’s view is not shared by Lady Hale, as her recent lecture made clear, nor, it would seem, by the president of the Supreme Court, Lord Neuberger, who, I believe, is on the side of light and whose frustration with the present outcomes shone through in a recent interview he gave to The Guardian in which he dissected the concept of merit—that is my gloss, not his words—and discussed how loaded it could be in practice. He said of the appointment process:
“I’m not saying there is a subconscious bias…what worries me is that we may all be suffering from a subconscious bias which by definition may be difficult to show or to prove.”
It might, he suggested, be a subconscious expectation of
“having an image of a judge with…male-type qualities and a male appearance. I’m not saying we do have that but there’s a risk that we do and it’s difficult to know how to cater for it.”
I agree entirely.
When I joined the House 34 years ago, just 19 Members—less than 3%—were women. Today, there are 143 women MPs, or 22% of the 650—seven times the proportion when I became an MP. The Labour party has managed to increase its proportion of women MPs to over a third; the Conservatives are now up to 15%. The proportion of black and Asian MPs is now up to 4.2%. For the first time in my parliamentary career, the House of Commons is beginning to look more like the society it represents, but the numbers are still not good enough.
We know two things. First, progress could not have been achieved without the special measures for women’s selection pioneered by my party, and commendably adopted in modified form by the Conservative party. Secondly, there is absolutely no evidence that the quality of women MPs, or of black and Asian MPs, is any less than that of white men. I do not at this stage suggest
that we adopt similar measures of explicit positive discrimination for the judiciary, although it may come to that if we continue to trail badly in the league tables. Canada adopted positive discrimination measures, which made a big difference to representation on the bench, and it has certainly not affected the quality of the Canadian judiciary.
Instead, the amendments that I have tabled with my hon. Friends would put on the statute book provisions that have been law in part of the United Kingdom for nine years, and which are plainly working, as my hon. Friend the Member for Darlington set out. Amendment 100 is a direct lift from provisions of the Justice (Northern Ireland) Act 2004. The Minister may say in his reply that the Government are doing quite a lot, and urge us to look, for example, at paragraph 11 of schedule 13 on page 224 of the Bill. The problem—although that measure is better than other provisions—is that it requires the Lord Chancellor and the Lord Chief Justice to
“take such steps as that office-holder considers appropriate for the purpose of encouraging judicial diversity.”
In other words, the test is entirely subjective, whereas as my hon. Friend said, our proposed provisions, which are already law, have been operated successfully by successive Governments, both Conservative and Labour, in Northern Ireland. As Lord Chancellor for Northern Ireland until the transfer of judicial functions in 2009, I operated those provisions, and they caused no difficulty at all. Instead of a subjective test, under the amendment the duties on the Lord Chancellor and the Lord Chief Justice
“would secure, so far as it is reasonably practicable…that appointments to listed judicial offices are…reflective of the community in England and Wales”.
They would also ensure that a range of persons who are reflective of that community can come forward for those positions.
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These provisions have worked, Northern Ireland having been a back marker on judicial diversity. For the avoidance of doubt, the problem identified by the Northern Ireland Judicial Appointments Commission was not principally that there was an under-representation of Catholics. It was that there was a gross under-representation of women. So from having been far behind us, Northern Ireland is now far ahead. According to the last figures that I have seen for the judiciary in Northern Ireland, 57% were men and 43% were women—streets ahead of our judiciary in England and Wales. Why? Because this House—not the Northern Ireland Assembly—put into the law provisions for the Northern Ireland judiciary.
Incidentally, back in 2004 the Joint Committee on Human Rights recommended that the same provisions be included in the 2005 Act for England and Wales, and it is a matter of great regret to me that my Government, though it was not me; I was abroad at the time—[Interruption.] I always say that; it is always true. It is a matter of great regret to me that my Government did not do that. The amendment is a serious one, moved with serious purpose, and I hope we can hear from the Minister that it carries his serious approbation as well.