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I say straightaway that I see the attraction of the simplicity of the formula proposed by the noble and learned Lord, Lord Donaldson. However, in response to the comments of the noble Baroness, Lady Anelay, it is only right to say that there is a long-standing commitment. It was made by my noble and learned friend the Lord Chancellor to the President of the Family Division, in particular, in relation to Clause 58. The clause is put forward in order to give voice to that commitment.
If the Bill were to apply the construction favoured by the noble and learned Lord, the prefix "Lord" and "Lady" would simply be left to convention. While of course I agree that it is likely that the convention will persist, the Government believe that it is desirable to fulfil a long-standing commitment to the serving female members of the Court of Appeal and their successors to equalise the position. Therefore, it is an honourable support of what we had promised to do.
I should tell the Committee that there are those female judges who are of the view that to fail to recognise the male and female styles of office would be quite wrong and that to make the office gender-neutral rather than recognise the female style would be offensive. Furthermore, serving male members of the Court of Appeal would be alarmed to lose the appellation "Lord". Those are remarks made outside and I do not necessarily comment one way or the other. However, I do say that this is a long-standing commitment and we believe it only right and proper that we honour it.
Lord Mackay of Drumadoon: Would the Minister care to comment on one practical consequence of the noble and learned Lord's amendment? In the Law Reports, judges at first instance are referred to "J". In the Court of Appeal, they are referred to "LJ". One would therefore have "Hale J" or "Hale LJ". How would Jane Brenda Hale be referred to were she a Court of Appeal judge known as a "Justice of Appeal"? One would need to have more than "J" to distinguish her from when she sat on her own. If a new system had then to be introducedthat of "Hale J of A"people looking at Law Reports might wonder why for years judges were known as "LJ" but are now known as "J of A". That seems to me to be a mouthful.
In the jurisdiction where I serve as a High Court judge, we call male judges Lord X and we call lady judges Lady X. That causes us no practical difficulty at all, but perhaps that is one example of how the Scots take a slightly more enlightened approach to matters than do our brothers and sisters south of the Border.
Baroness Scotland of Asthal: The noble and learned Lord is certainly right to say that if we leave it as "Lord Justice" and "Lady Justice", then the initials will remain as "LJ" and "LJ". I do not think that it is necessary for me to explore what other appellations might be attached if we moved to using simply "J".
Baroness Scotland of Asthal: I think we have settled the matter by saying that it is preferable for them to be called "Lady Justice" as opposed to "Dame". If we were in America, I suppose that another construction could be put on it.
Lord Donaldson of Lymington: I find it surprising that this has been put on the basis of honour. I understand that some years ago the present Lord Chancellor made a commitment to alter the position of lady members of the Court of Appeal so that they could be called "Lady Justice". That has now taken place. However, I cannot believe that his commitment was to a particular form of words, which is what is now being suggested.
I have not met any male judges who have commented other than to say that this is a matter of indifference. So we are left in the position that two lady members of the Court of Appeal have said, "We need statutory protection". Does that make sense? Has the Lord Chancellor gone further by saying, "Of course you can have statutory protection, but not necessarily in this form". If the proposal is a better form, then so be it.
In answer to the point made about law reports, I strongly suspect that they would continue to be described as "LLJ", and quite rightly so. However, if one wanted to be purist about the point, it would not be "J of A", but "JA" and "JJA". We have been told that the Scots are ahead of us in this matterof course they always are; I say that in order to bring the noble and learned Lord on to my sidebut in effect we are seeking to do the same thing. It would be "Lord Justice Smith" and "Lady Justice Hale". That is exactly how it is done in Scotland and thus I do not see any problem here.
I have heard no reasoned support for the change proposed in the Bill as opposed to the change that I have suggested other than that, without the benefit of argument, the noble and learned Lord the Lord Chancellor committed himself to a particular form some years ago. I think that it is a terrible comment on the legislature of this country if we are to be stuck with that.
Lord Donaldson of Lymington: I am obliged to the noble Baroness. I was unable to undertake a trawl. It may be that when other noble Lords read this interesting exchange in Hansard, it will be suggested that I return to the matter. I shall reserve that right, but in the mean time I beg leave to withdraw the amendment.
Clause 59 is concerned with judicial titles and sets out a list of what are said to be such titles which the Lord Chancellor wants to take the power to alter. Included in that list is the Master of the Rolls. I want to make it clear that I do not seek to make a NIMBY point, but the fact is that the Master of the Rolls is not a judicial title. I was sworn in as Keeper or Master of the Rolls and Records of the Chancery of England. That is not simply a matter of form.
The office goes back certainly to Norman times. The earliest record of a Lord Chancellor that I could find was a reference to Lord Chancellor Maurice, who became the Bishop of London in 1086. That was the historic function of the Lord Chancellor; that is, to keep the king's conscience. In other words, he was the king's chaplain. I do not doubt that in those days the office holder meddled in politics, as does the present Lord Chancellor.
In parallel with that office, and I suspect at much the same time although the first record I could find refers to 1268, was the office of the Master of the Rolls, who acted as the king's secretary responsible for keeping copies of all state documents. That job has never changed and it is not simply a formal description; you actually do it. When I was Master of the Rolls I was asked to authorise the transfer of a document which, for various reasons that I need not go into, had been kept in the Lord Chancellor's safe. The document was to be transferred to Her Majesty's family archives at Windsor instead of back to the Public Record Office, where it ought to have been sent. I executed an order and even imposed conditions. I had to be satisfied that Her Majesty wanted the document and that the Chancery of the Rolls of England would be properly annotated to show where the document had been stored.
In addition I was responsible for approving or disapprovingusually disapprovingarrangements for the custody of manorial records. Anyone who tried to export a manorial record found that I would not let him do so. That was an active role. I was also responsible for registered deed polls involving changes of name. That function produced a crisis. A gentleman wanted to register a change of name, but there were solid objections to allowing him to do so. I stated immediately that someone else would have to deal with the matter because, first, I knew the gentleman, although not well. More seriously, however, my son had been working for him and was in the process of suing him for his fees. However, I discovered that I could not give up the function because there was no deputy. The statute has been changed to provide that
That covers the day job and I turn now to the moonlighting function of the Master of the Rolls, if I may put it in those terms. Over the years the extra functions of the Master of the Rolls have taken many forms. At one time the Master was also the Speaker in the House of Commons. Indeed, one of my more distinguished predecessors, Sir John TrevorI hope that I do not defame himwas the Speaker towards the end of the 17th century. Sir John incurred the wrath of the House of Commons by taking a bribe of £1,000 from the Corporation of London to expedite the passage of a corporation Bill. The Commons thought that too much and showed signs of removing him as Speaker.
Sir John Trevor knew a trick or two; he knew that the House of Commons had no jurisdiction if the Mace was not in its place, so he took it home with him. For four days there was an impasse. Eventually the situation was resolved. He ceased to be Speaker, but he remained Master of the Rolls for another 20 years. So the jobs have varied a great deal.
The only reason why I and my successors as Master of the Rolls have been able to perform a judicial duty at all is that the Supreme Court Act provides that we are ex officio judges of the Court of Appeal. So it is entirely inappropriate that the title of Master of the Rolls should be included on this list. I venture to suggest that it would be a major legislative solecism if it remained there. I hope that this amendment will have more success than the previous one. I beg to move.
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