Lord Speaker's Corner: Baroness Butler-Sloss
23 June 2023
Hear leading former judge Baroness Butler-Sloss talk with Lord McFall of Alcluith about decreasing parliamentary scrutiny and women in the law in the latest episode of Lord Speaker's Corner.
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In this episode
‘There’s been a creep, a distinct creep, in the last 10 - and possibly mainly the last five - years to move away from parliamentary scrutiny. It’s not just the Lords, it’s parliamentary scrutiny. I remember talking to a Conservative MP and saying: “Are you noticing the extent to which you are not now being asked to make the decisions?”’
In this new episode, former President of the High Court’s Family Division and previously the highest-ranking female judge in England and Wales, Baroness Butler-Sloss warns of a decline in opportunities for Parliament to scrutinise legislation. She also speaks about her long legal career, her success in breaking through the ‘glass ceiling’ holding back women lawyers, her report on the Cleveland child abuse scandal and representation of different faith groups in the Lords.
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Lord Speaker:
Baroness Butler-Sloss, Elizabeth, welcome to Lord Speaker's Corner. You're a person of vast experience in the law and elsewhere and you have broken many glass ceilings. In fact, I read that when you started life as a barrister, you were one of 64 women out of 2,000 barristers. And at the time, a number of solicitors refused to give you business.
You went on to become the most senior female judge in England. And your success paved the way for other people feeling that they have got something to contribute to society. So could you give me a flavour of that early start and how you went about your business?
Baroness Butler-Sloss:
Well, I was 21 when I was called to the bar. So I was very young. I had a legal background, but most solicitors didn't want to brief me. There was very little work at the bar at the time, and I eventually got a practice, and 15 years later I was invited by the then president, one of my predecessors, would I please become what was then called a registrar at Somerset House? He wanted a married woman with children. I told him I was only 36 and he said, "Oh dear, I told the Lord Chancellor you were 46." [Laughter]
However, they still took me, and I thought I wasn't going to get any preferment because nobody had ever gone from the principal registry higher. But nine years later, I got made a high court judge, and some years after that I did the Cleveland Child Abuse Inquiry. Then I was the first woman in the Court of Appeal, and I kept my head down, Lord Speaker. I thought it was important since I was there, I shouldn't make waves so that they would want to appoint more women.
Lord Speaker:
But keeping your head down was accompanied by a real determination.
Baroness Butler-Sloss:
Oh, yes.
Lord Speaker:
Exactly.
Baroness Butler-Sloss:
And of course, I was a family lawyer, a family judge, and I had to learn about civil work, some crime, and it was a testing period, but very, very interesting.
Lord Speaker:
The Cleveland Abuse Inquiry, I was elected as an MP just about that time. I remember the Member of Parliament for Middlesbrough at that time had been very, very upset at the situation happening there. If I remember correctly, about 121 children were taken into care over a period of three weeks or so.
So it would seem in retrospect that the paediatricians and the social workers were gripped by a narrative, which subsequently had to be really examined. If I could try to sum up your philosophy for you at that time, you famously said, "Listen to the children." And in one case, I believe, maybe not related to Cleveland, that you changed your judgment as a result of listening to a child, but that listening to the children, I think that's a fantastic philosophy.
Baroness Butler-Sloss:
Well, where possible, sitting as a judge, I saw older children, and certainly I think in more than one case, the children, I mean, one child said to me, "This is what I want." And I said, "But you told the welfare officer you wanted something different." "Oh yes," she said, "that didn't matter. I knew you were the person who mattered. This is what I really want." So I went back into court and said, "Look, she's told me this. I will do what she says. It seems sensible."
Lord Speaker:
And you've carried that philosophy through in your life, listening to the children.
Baroness Butler-Sloss:
Yes, definitely. I also tried to keep my judgments short. I tried to keep my interventions in the Lords short. I think people listen if you don't go on for too long.
Lord Speaker:
You have been very much in the vanguard of ensuring more women in the law. Now we've come quite a distance due to the work of yourself and others, but how much further have we got to go? And in light of your desire to listen to people and engage, particularly when you were a family judge, how do we go about our business in a better way?
Baroness Butler-Sloss:
I think we've got a very substantial number of women in the lower areas of the courts, particularly district judges, tribunal chairmen. My view is that there should be more promotions if you find somebody who is a tribunal judge, should be appointed either to circuit judge or perhaps onto being a high court judge.
But I think there are people out there, a lot of women, but also minorities who ought to be encouraged back, perhaps in their middle-age. Women barristers who left either to look after children or look after parents, and when they're free and they ought to be helped back into the law. Not necessarily to go into chambers or into solicitors’ practices, but to go and become deputy registrars or deputy chairmen or something with a view to promoting them.
Now that judges at lower ranks can all be part-time, I think there should be much more. There's a hidden talent there of the women, but also I think we need more to worry about the ethnic minorities getting in rather than the women. The women are really doing very well in the lower ranks. They're not doing well in the Supreme Court at the moment. But there isn't the pool.
Lord Speaker:
One thing I say when I'm interviewed as Lord Speaker is that the House of Lords is a place where good law is made. It comes to us from the House of Commons in an incomplete state, and it's polished up and brushed up and sent back to the House of Commons.
Now, we are unelected. So the House of Commons has a final say on that, but there is no doubt that if it wasn't for the experienced people in the House of Lords, then I would think the law would be deficient. Given your tenure in the House of Lords and your experience, would you agree with that?
Baroness Butler-Sloss:
Entirely. I think it's very important, and I actually think the lawyers in the Lords can be very helpful and the judges can play a part in looking at the unintended consequences of some of the clauses and the bills and can point this out.
We do have quite a good record, quite a percentage of our amendments are accepted in the Commons, usually in the less controversial legislation. But I do think that's important, and we do play a valuable part I think in moulding the legislation.
Lord Speaker:
I think, if I remember correctly, just a recent report by the Constitution Unit stated that about 56% of the amendments that were accepted by government originated in the House of Lords through discussion. Could you take us through how the House of Lords looks at legislation that comes from the House of Commons, and how that is refined and sent back?
Baroness Butler-Sloss:
Well, let's take the Illegal Migration Bill, starting today, there's a second reading where everybody speaks for whatever length of time they are allowed. That tends to take a long time, and there's a very large number of speakers today. Then it comes to the committee stage, where people put down amendments to the bill, some of which are sensible, some of which the government recognises, a great many the government would not entertain.
But what matters is the next stage, the report stage, because that's when we vote. As you know, Lord Speaker, we very seldom vote at committee, but we vote very regularly at report. And interestingly, the government in many bills, particularly I remember the NHS bill some years ago, where most of the amendments came from the government. Because by the time it had left the Commons and come to the Lords, the government realised they had to make a very substantial number of changes.
Lord Speaker:
In terms of speaking up for people with no voice, you have made a big impression in the area of modern slavery where you supported the Prime Minister Teresa May at the time. You have intervened in the adoption area, asking for more support for parents who adopt children, not just at the time of adoption, but as they grow older, given that some of the traumatic experiences young adopted children have in early life - that they need support later on. You're also very much involved in the area of human trafficking. Can you take us through that?
Baroness Butler-Sloss:
Well, I first learned about modern slavery when I was a judge, and there were some very young girls, I say young, young teenagers, coming through Gatwick Airport on their way to Italy, where they were going to be standing on the streets as prostitutes. Fortunately, the police stopped them and the question was what to do with them, and some of those girls came through my hands.
When I came here, Anthony Steen, then an MP, a conservative MP for Totnes, persuaded me to help him set up first the Human Trafficking Foundation, which is a charity, and then the all party group on modern slavery. He left the Commons and successive MPs have been the main chairman, but I've been the co-chairman since its foundation. We're going to Warsaw later next month to discuss with a number of countries surrounding Ukraine, what countries can do to help victims and particularly children coming out of Ukraine.
Lord Speaker:
The House of Lords gets in for a lot of criticism as we know, but almost all second chambers in the world get criticised in one way or other. But would there be a loss if the House of Lords was an elected body?
Baroness Butler-Sloss:
I have quite strong views about it. I can see an element of election might satisfy many people. The trouble is twofold for me. One is how long would they be elected for, and the Liberal Democrat view that 15 years and they wanted accountability, but day two, you are no longer accountable because you won't be re-elected. And it seemed to me that didn't work.
So I think you would have to have a re-election period, but then you'll have the question of who takes priority, the Commons or the Lords. The Lords always gives way, excepting the Parliament Acts occasionally. But if we were elected, we would expect to take an interest in the budget, and we would expect to be listened to and we would not expect to be literally trodden over by the Commons when they don't like the amendments we make.
I think they are major difficulties. My view is there should be a constitutional commission to look at what is the future of the House of Lords and the House of Commons to see what sort of relationship could be achieved before they try and reform us.
Lord Speaker:
So you're bringing your legal skills to the fore there and saying, before we take any action, we should really try and explore what the consequences are going to be.
Baroness Butler-Sloss:
Yes.
Lord Speaker:
Exactly. Now, some would say the House of Lords is an affront to democracy. It's unelected, and therefore, given it's unelected and it's undemocratic, it shouldn't exist at all. What would be lost if the House of Lords was abolished in terms of it scrutinising legislation and engaging with the Commons and engaging with wider society
Baroness Butler-Sloss:
I think it would be disastrous. The Commons not only produces incomplete and very often nowadays, badly drafted bills, which we put to rights in the Lords and which for which they are actually grateful. If we weren't there to criticise, to hold the government of the day to account to an extent that the Commons is unable to do, and you've only got the fact that both Suella Braverman, and I'm trying to remember the name of the present Justice Minister, have been writing in one of the newspapers, warning us not to disagree with the Commons, the extent to which we do have an influence.
Lord Speaker:
You mentioned about changing and assisting legislation. Could you give us one example that sticks in your mind on that, a law that would've been deficient had the House of Lords not intervened?
Baroness Butler-Sloss:
Well, the most extreme in my years in this place was the former NHS Bill that was dramatically changed from the Commons to the Lords. In the Lords, more than half the amendments in the Lords were government amendments.
Lord Speaker:
And government amendments after listening to the Lords at the various stages we went through.
Baroness Butler-Sloss:
Yes. But the very valuable thing that I think Crossbenchers, the independent peers can do, is ministers tend to listen to us perhaps a bit more than the official oppositions. And if I am concerned about a particular bill, mainly on children, but other things, I go and talk to the minister.
For instance, the current minister in the Lords on the Nationality and Borders Act, and again, the Illegal Migration Act because there are modern slavery aspects, Simon Murray and I had a long chat about the points that I was concerned about. I don't think I persuaded him, but at least he had my point of view.
Lord Speaker:
But there's an opportunity for reflection there absolutely. Your Christian faith is a strong part of your personality, and I believe that you were on the panel that appointed Rowan Williams as the Archbishop Canterbury.
Baroness Butler-Sloss:
Yes, I chaired the commission.
Lord Speaker:
Some would say, given modern society that there are less practicing Christians in the country now than there ever has been, and therefore, religion has got a less important part to play. But you chaired the commission, I think in 2015, which suggested that there is a need for religious literacy in the country. Can you explain that?
Baroness Butler-Sloss:
Yes. I did two things. One is... I did a parliamentary group, which is still living, with Yasmin Qureshi, MP, who's a Muslim. And we looked at the literacy of religion in the press and the media generally. But I chaired a commission on religion and belief in modern day Britain.
Our title for our report was Living With Difference, which we found very interesting. We went around the country, we went to Northern Ireland, went to Scotland, a great deal to the north of England and the Midlands, to talk to everyone that we could possibly meet to discuss it. What interests me is that although churches, in particular, are reducing in their congregations. On the whole cathedrals, the ones that I've been to, are busy.
When anything matters, the cathedrals are packed. On big occasions and on occasions of tragedy or whatever it may be, people just congregate to churches, and I think the church retains a very, very major importance. You may have to rethink, as I think the current Archbishop of Canterbury is, how best to meet the spiritual need of a public aren't necessarily prepared to say that they're Christian or Anglican.
Lord Speaker:
And other faiths as well. I mean one of the things about the Coronation was that many faiths were involved.
Baroness Butler-Sloss:
Yes, Lord Patel, Lord Singh of Wimbledon and so on. That was great to see them.
Lord Speaker:
And you mentioned about your commission and going round the country and engaging with people. And in your legal work, listening to people, it seems that in today's society with social media, we're hearing a lot from people, but we're not listening. What advice do you have for modern society in that regard?
Baroness Butler-Sloss:
I think stand back, do listen. It matters very much. Don't automatically think your point of view is right. I mean, one of the sadnesses is everyone has rights. Nobody looks for responsibilities. Except I have to say the King has set up that marvellous Monday where everybody went to help. I mean, it was great, and there is a deep-seated history of volunteering in this country, but it doesn't seem to extend to people listening.
Lord Speaker:
In your exchanges with people in society, and given that the verdict is there's less people practicing Christianity now, does that mean that there's less demand, there's less engagement on spiritual matters?
Baroness Butler-Sloss:
Well, I mean, I don't get around the country now all that much, but my impression is many, many people who won't admit to being specifically Christian have very strong spiritual leanings. But also the church has its uses. I mean, I'm thinking of the Anglican church.
In the village next to where I live in Devon, the Vicar found very few people went to church. So, he was a New Zealander, and he got two chairs and a table on the village green. And one morning a week, he just sat there all morning, and so many people turned up to talk to him. I think that sort of thing, which might be spread in different ways, shows that people do find the clergy, many clergy, extremely helpful if they have difficulties.
Lord Speaker:
In terms of the family courts, and there's no one with more experience yourself in that, is it a case for doing our business in a better way? You mentioned about the need to listen to people. Could our family courts be more a conciliation service for people rather than a formal legal process?
Baroness Butler-Sloss:
Well, this is being looked at, at the moment and I think that the mediation, conciliation area of divorce, in particular, but also in separation, and obviously in, what do they call it, the non-divorce situation. I mean, they're all very much the same. The couples I worry about are the couples who don't marry, and then separate because they don't come within the matrimonial jurisdiction, but their needs are just as great as those who are married or in civil partnerships.
I think, yes, much more in conciliation, and I think the government is definitely looking at that. I hope that if the next government is Labour, they would also do that, and I expect they would.
Lord Speaker:
Good law is the keystone to a stable society. Sometimes when we say that the House of Lords scrutinises law, some would retort, "So what?" When somebody says that to you, what verbal barrage do you give back?
Baroness Butler-Sloss:
I think I probably laugh, but I say that the country has to have a rule of law. It's what keeps it stable, and if we have bad laws, then that's disastrous. One has then to aim to get them better.
Lord Speaker:
And the connection between the rule of law and democracy?
Baroness Butler-Sloss:
It's absolutely crucial, because you only have to look at what appears to be happening, not just in Russia, but in Myanmar and many other countries, to some extent in Turkey. Oh and very much in Hungary, isn't it? And now in Israel where they are threatening the independence of the judges, and the judges' independence gives them the opportunity to say what needs to be said.
The interesting thing is that Lord Judge made a marvellous speech on one occasion about six or nine months ago, about there wasn't a problem between Parliament and the judiciary. The problem was between the judiciary and the government, because the government is working further and further to deny both the House of Commons and the House of Lords a proper say in a great deal of work.
I mean, all the bills that say, "The minister will make regulations," and you don't actually know what the regulations will be. As you know, we can't really change regulations, and the judiciary has a role in watching that. But what Lord Judge then went on to say was, "If Parliament doesn't like what the judges do, they can change the law."
Lord Speaker:
But the law has got to be well scrutinised, and a number of our committees, our [Delegated Powers and Regulatory Reform] Committee and others, they've been very vocal in saying that we shouldn't have primary legislation bypassed at the whim of a minister.
Baroness Butler-Sloss:
Absolutely. I mean, it's an essential part. And there's been a creep, a distinct creep in the last 10, possibly mainly five years, to move away from parliamentary scrutiny. It's not just the Lords, it's parliamentary scrutiny. I remember talking to a conservative MP saying, "Are you noticing the extent to which you are not now being asked to make the decisions?"
Lord Speaker:
In fact, Lord Blencathra, when he chaired the Delegated Powers and Regulatory Reform Committee came in to see me a few times to make those very points, and his committee comes out with those reports, so that articulation is coming from the House of Lords for sure. So just finally, in terms of that issue and how important it is not to bypass it?
Baroness Butler-Sloss:
Well, we absolutely mustn't allow the government to turn Parliament into a yes man.
Lord Speaker:
Any government.
Baroness Butler-Sloss:
Any government. Oh yes, I mentioned this government because this is where the legislation that we don't like is coming through. I mean, the Northern Ireland Protocol Bill, which thank goodness never went through, was an extreme example of the government making every decision, and the bill on changing the EU laws, which Lord Judge pointed out were actually British laws, because they'd all been turned into British law.
The government was expecting both Houses just to allow them to decide which should be kept and which should be got rid of without any scrutiny from Parliament.
Lord Speaker:
Last question. You've always engaged with people throughout your life. There's a message for young people today who appear to be uninterested in politics, although I don't find that when I talk to young people, but having a lifetime of engagement in the law and in politics, what's your message for young people?
Baroness Butler-Sloss:
Well, you live in this country, you ought to play a part in it. One of the most important parts is to take an interest in how the country's being governed, because you complain very often about it and the way it's governed. Well, you could have a say in changing it.
Lord Speaker:
So it's not armchair critics you're looking for, it's active critics.
Baroness Butler-Sloss:
Certainly. I'm all for that.
Lord Speaker:
So Baroness Butler-Sloss, thank you very much for taking part in Lord Speaker's Corner. A great example, not just to people in the House, but to people in the law and to the country as a whole, and ‘lang may yer lum reek’. Thank you.
Baroness Butler-Sloss:
That's very kind of you. [laughter]
Lord Speaker:
That's a Scottish phrase, ‘Lang may yer lum reek.’
Baroness Butler-Sloss:
Oh, that's very nice.
Lord Speaker:
Keep it up.