DEPARTMENT OF LEGAL ADMINISTRATION (Hansard, 25 July 1990)

HC Deb 25 July 1990 vol 177 cc577-91 577

§ '(1) There shall be a department of state to be known as the Department of Legal Administration answerable through a Minister or Ministers to the House of Commons.

§ (2) The department shall be responsible for

(a) the administration and organisation of courts and tribunals in England and Wales;
(b) the recruitment training and appointment of the magistracy and judiciary through a Judicial Appointments Commission;
(c) the provision of legal aid, legal services advice and representation;
(d) the supervision of the legal professions;
(e) the Law Commission and law reform; and
(f) such other matters as the House of Commons shall by resolution decide including such powers or duties hitherto conferred upon the Lord Chancellor other than duties of a judicial character.'.—[Mr. Fraser.]

§ Brought up, and read the First time.

§ Mr. Fraser
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker (Sir Paul Dean)
With this we shall discuss new clause 26—Judicial Appointments Commission—

§ '(1) There shall be a body corporate to be known as the Judicial Appointments Commission (The Commission).

§ (2) The Commission shall consist of a chair and not more than 20 other persons independent of politics and appointed by the Minister for Legal Administration.

§ (3) The Commission shall have the duty of advising the Minister for Legal Administration on the recruitment, training and appointment in England and Wales of magistrates, the judiciary and members of statutory tribunals.

§ (4) The Commission shall comply with the overriding principle that its work shall be directed to the fair, just and efficient administration of justice without partiality or prejudice.

§ (5) Subject to the overriding principle the Commission shall have regard to the needs to ensure—

(a) that appointees are equipped to interpret and apply the law fairly and efficiently;
(b) equal access to the law, and
(c) the appointees are representative of the community, socially aware and trained and equipped to perform the duties assigned to them.

§ (6) The Commission shall consult the designated judges and may consult other persons and bodies about the discharge of its duties.'.

§ Mr. Fraser
The two new clauses are different in substance, and I shall briefly describe their effect. New clause 24 would create a department of legal administration—what is called in many countries a Ministry of Justice. It would be answerable to the House of Commons, it would be amenable to the supervision and the investigation of a Select Committee, and it would answer to this House for what is the considerable current expenditure of the Lord Chancellor's Department.
New clause 26 would create a judicial appointments commission, the exact terms of which it sets out. Essentially, it would be concerned with the selection, training and appointment of judges, chairs of tribunals 578 and other judicial figures, including magistrates. The commission would have as its overriding principle that its work would have to be directed
to the fair, just and efficient administration of justice without partiality or prejudice.
The creation of a department of legal administration would bring the administration of the law—the spending on the administration of the courts—into the political arena to a much greater degree than at present. It would have a spending budget of £1 billion a year, including legal aid. By contrast, the setting up of a judicial appointments commission would take the appointment of the judiciary out of the political arena and, for the first time, make it entirely consistent with the constitutional principle that the appointment of the judiciary should be entirely free of political control.
I wish to go into a little more detail about the proposed department of legal administration. First, its main function would be the spending of about £ 1 billion. The Lord Chancellor would cease to be the last of the big spenders in the House of Lords. It was perhaps justifiable to have a Minister in the other place at a time when the Lord Chancellor's Department spent little money and when there was no legal aid scheme. Now, with expenditure of £1 billion a year, the Minister should be accountable to the House of Commons.
Secondly, a department of legal administration would allow criticism of the administration of the courts, but not the exercise of judicial judgment and discretion. The matter would be in the centre of the political arena rather than tucked away in a corner of the unelected Chamber. Such a department would also be responsible to this House for the operation of the legal aid scheme and its coverage. Eligibility for that scheme has slipped from 90 per cent. of cases to 70 per cent. and is still falling. That matter ought to be the subject of much greater scrutiny by this House, including by the Select Committee on Home Affairs.
The Attorney-General may say that the Government are spending more and more money on legal aid. Although that is true, the reason is the crime epidemic that has become evident since the present Government came to power. From the figures it is clear that a high proportion of that expense is accounted for by criminal defence costs. Claiming credit for an expansion of the legal aid service by quoting expenditure figures is like saying, in the event of a plague, that the national health service is doing better only because it is spending more on combating it.
The legal aid scheme should be exposed to much more debate, criticism and accountability in this House. There should also be much public discussion and constructive criticism of the work of the Crown prosecution service. I have always made it clear that we are strong supporters of the concept of the CPS, but we want it to operate efficiently. Although we are concerned about the defence of liberty, civil rights, and the ability of the individual to receive a fair trial, the victims of crime have rights. If prosecutions are handled incompetently and are not given sufficient resources, and if those guilty of crimes escape because of the prosecution's inefficiency, that too is wrong. The quality and rewards of the CPS should also be debated more thoroughly in this House.
A department of legal administration could concern itself with law reform. I would prefer to see many more people asking questions of this House about why we retain stupid, unfair or outdated laws and do not go about 579 reforming them more thoroughly and quickly. I can think of whole areas of law in urgent need of reform, which would occur if more pressure were exerted on this House.

§ The Attorney-General
Such as in respect of the Shops Act 1950.

§ Mr. Fraser
I shall refer in a moment to controversial issues and the part that a department of justice or a department of legal administration could play in them.
I can think of a number of areas where law reform should proceed more quickly. One example is the liability of an original lessee. It is ridiculous that someone who signed a lease 50 years ago as the original lessee should still be liable. It is wrong also that those having leasehold flats have not been given a system of enfranchisement and of commonhold ownership consistent with present day ownership. When I was Minister of State for Prices and Consumer Protection, it struck me as ridiculous that one had to use a private Member's Bill on a Friday to push through a reform such as the Unfair Contract Terms Act 1977, which I, with my former hon. Friend the Member for Peterborough, was able to put on the statute book. It seems silly that we should not have a more vigorous system of law reform run by a department of legal administration answerable to this House.
The Attorney-General referred to the Shops Act 1950. There are a number of outdated items of legislation on the statute book, and many others proposed that are highly controversial. A department of legal administration should not shrink from making it possible for the House to reach decisions about them.

§ The Attorney-General
But it does.

§ Mr. Fraser
It was right for the Leader of the House recently to make it possible for the House to reach decisions about the Human Fertilisation and Embryology Bill on an issue about which the law clearly needed reform. The Leader of the House allowed the House to reach a conclusion. That should happen more often. I hope that it will be possible to expedite the passage of law reform legislation through the House by the combined use of a Select Committee and a Standing Committee as happens at the moment with consolidation legislation.
I would like to see Ministers answerable in the House for the efficient administration of the courts as well as for the efficient and wide availability of legal aid. I want to see a department which will develop a comprehensive—

§ It being Ten o'clock, further consideration of the Bill stood adjourned.

§ Ordered, That, at this day's sitting, the Courts and Legal Services Bill [Lords] may be proceeded with, though opposed. until any hour.—[Mr. Lightbown.]

§ Bill, as amended (in the Standing Committee), again considered.

§ Mr. Fraser
I want to see a department which will develop a comprehensive coverage of advice and representation across the nation, not just including the legal professions, but encompassing advice agencies such as the citizens advice bureaux, which would assist a network of law centres supported by central and local government. It should be sufficient to meet the needs of the population and be assured of independence. I would like 580 to see a coverage of representation and assistance for tribunals no matter what their nature. We want to develop a system of advice and representation, both lay and professional, which ensures that no man or woman's rights are diminished or abrogated because of a lack of advice, help or representation.
Those matters should be given more attention by the House. A department of legal administration could be examined critically and constructively. There is no reason why those matters should not be the subject of more political debate and controversy in the House. The administration of justice should not be remote or mysterious. We want to bring the large amount of spending and other important matters concerning the administration of justice into the House under a prime department for the first time.
I want now in contrast to consider the establishment of a judicial appointments commission. That would remove political control and the exclusive nominal control of appointments from the Lord Chancellor and the Prime Minister, who are both Cabinet members. I do not want to criticise the way in which the present Lord Chancellor has conducted his duties as he is responsible for the appointment of the judiciary. I have great admiration for the work of the Lord Chancellor's Department in the way in which it assembles information and gathers intelligence to make judicial appointments.
However, I am sure that it is wrong that such a duty should be undertaken by a political Minister. The number of appointments is now so much greater than when the system was traditionally under the control of the Lord Chancellor. For example, there are 920 judicial appointments, excluding appeal and High Court judges, and there are thousands of magistrates. The overriding principle would be the independent and efficient administration of justice. However, there are other targets and criteria which we could give to a judicial appointments commission which it could conduct in a way that was free from political control.
We could ensure that judges were more representative of the communities that they served. Judges are not masters of the community; they are its servants. I know that the Lord Chancellor has taken seriously the importance of the appointment of women, who I am reminded from time to time are not a minority, but the majority in our society. I know that he also takes seriously the appointment of black people and other representatives of ethnic minorities in this country. However, if we had a judicial appointments commission it would be possible to be more expansive and imaginative and to invite more ideas about the way in which we could make the judiciary and the bench more representative of the population they serve.
Despite the good faith and good intentions of the Lord Chancellor's Department, the judiciary simply does not reflect the composition of the country. There are 408 circuit judges presiding over Crown courts and county courts, but only 17 of them are women. There are 216 county court registrars, of whom only four are women. There are 49 stipendiary magistrates, of whom eight are women, a rather better figure. Industrial tribunals deal with employment cases and sexual and racial discrimination. Of 64 full-time chairs of industrial tribunals, only six are women. There is only one woman out of 16 social 581 security commissioners, and there is only one woman out of 14 chairs of social security appeal tribunals. Much though we may try, it is simply not good enough.
We need a commission which is set targets and criteria so that appointments to the judiciary and chairs of tribunals reflect the community they serve, including women and other groups.
We should encourage a career structure in the judiciary where it is not always possible for someone with 10 years' experience in the courts to go straight to being a judge. Some people may find it much more difficult to achieve a judicial post because of their career patterns and experience. There is no reason why someone should not be appointed chair of a tribunal and, if they prove themselves to be good after serving for a short time in that capacity, to move to a higher or different judicial appointment so that a career pattern would be created within the judiciary in addition to the traditional pattern of serving as an advocate and then being appointed, sometimes temporarily and sometimes permanently, as a judge.
Such a commission would encourage our judges to be more accountable and discuss more constructively the nature of their work and the way in which they approach it. Having removed judicial appointments from political control, it might be easier to rebuke and, if necessary, dismiss judges. I know that we are not here to criticise individual judges, but there is much concern about judges who say that women are liable to be raped if they walk home alone on a dark night. There have been examples of judges who appear to be out of tune with the needs and views of the community that they serve. A commission removed from political control would be freer to deal with such matters.
We want a judicial appointments commission which is transparent in its operations. I am not suggesting that confidential information that affects whether someone should be appointed should be entirely open and that people should have to disclose the sources of that information, but the way in which the system works has to be transparent. Those who seek an appointment need to know what has been said about them and to be given an opportunity to counter any unfavourable statements that might damage their possible career in the judiciary. We want a system that is transparent and imaginative.
One of the proposals involves a more vigorous political debate about the administration of the law, the efficient conduct of our courts, the expenditure of money and the extent of legal aid. We want one vigorous political department dealing with the administration and reform of the law. In contrast, we want another body that is independent of politics, that is transparent and that perhaps will approach more imaginatively the task of recruiting, training and appointing judges. Both propositions are needed, and I hope that they will be supported.

§ Mr. Temple-Morris
It is one of the ironies of a Report stage such as this when we come under pressure of time that a whole galaxy of worthy and interesting subjects comes up for discussion. It is tempting to let loose, particularly about a ministry of justice or a department of legal administration. My right hon. and learned Friend the Attorney-General will be relieved to know that I shall resist that temptation and speak briefly, perhaps wearing my Law Society hat, to register a genuine anxiety about the new clause 26 which deals with a judicial appointments commission.
582 Our judicial appointments system is historic, thorough and experienced, but it is perhaps one of the most closed and charmed systems in the land. We touched on that in Committee. I do not criticise the system as such, but its nature does not exactly charm most solicitors. Indeed, they feel somewhat outside the system of selection at the very time when they are penetrating the higher courts. taking on judicial appointments and hoping to take over more of them. That is a serious concern.
I have definite sympathy with new clause 26, as does the Law Society, and I hope for some suitably reassuring words from my right hon. and learned Friend.

§ Mr. Bermingham
I wish to raise one matter on new clause 24. My hon. Friend the Member for Norwood (Mr. Fraser) referred to the rights of the victim. I have some questions for the Attorney-General.
Why will the Legal Aid Board not grant the cost of experts in many defence cases of serious crime? That is a serious matter. For example, in a car ringing case, the Crown had experts in engineering and motor sciences. The defence asked for an engineering expert because the Crown's evidence was to be challenged, but the request was refused. Is that justice?
Why has a senior judge found it necessary to write to the Director General of Public Prosecutions with anxieties about the competence of counsel in certain prosecutions in the south-eastern circuit? Why has a certain criminal court judge written to a senior member of the Bar—I am prepared to supply his name to the Attorney-General—about exactly the same question? Why is there a general belief that grade 3 barristers are not being briefed and grade 3 work is being sent to grade 2 barristers? Could it be that the Crown prosecution service is being starved of funds and therefore cannot brief competently?
Is that why briefs on rape cases, which must be tried in the central criminal courts, are being touted around the Temple in an attempt to find a prosecuting barrister? Will that bring justice to the rape victim who has a right for her case, which is the Crown's case, to be put properly in our courts? Could it just be that the Treasury purse strings are operating in such a way as to constrain and restrict the right of the Crown prosecution service to brief the most competent and best counsel? Is it right that a considerable number of the best and most competent senior juniors seem to be ceasing to do prosecution work? Is that in the interests of society?
The Attorney-General will say that I should ask the Minister responsible, but who, bar the Attorney-General, is responsible and answerable to us? If we had a ministry of justice and a Select Committee to oversee those matters, the Select Committee could call witnesses and ask questions. I have been a member of the Home Affairs Select Committee for some years. We can touch upon certain little matters because our brief carries us that far, but we cannot touch on the Lord Chancellor's Department, and we cannot touch on other matters to do with legal aid.
We can touch, however, as we did recently—although I declared an interest and did not take part in the inquiry—on the Crown prosecution service. Would it not be wiser if all the spending Departments were under one Ministry, with a Minister answerable at the Dispatch Box, fortnight in and fortnight out, not just for 15 minutes at Attorney-General's Question Time but for perhaps an hour, as many other Ministers are?
583 These matters are of considerable importance to men and women in the street. Whether we defend them properly or prosecute them properly is a matter of concern to society. The victim and the defendant have interests, and the Treasury's cold hand seems to be causing damage to both.

10.15 pm

§ Mr. Vaz
The hon. Member for Leominster (Mr. Temple-Morris) said that he was concerned that so many new and radical ideas that have been put forward not just by the Government but by the Opposition are being considered so late at night and in such a brief time. He was quite right. That is why, at the start of the proceedings, I raised a point of order about the allocated time preventing hon. Members from carefully considering the many amendments to the extent that we would like.
This new clause places on record the cornerstone of the Labour party's policy on legal affairs. I am not particularly friendly towards the name "Department of Legal Administration". It sounds a bit Jim Hackerish. I have raised this matter with my right hon. and learned Friend the Member for Aberavon (Mr. Morris). What's in a name? I am sure that we could make progress in terms of what we call our ministry of justice because of the important role that it will play in the administration of policy when my right hon. and learned Friend the Member for Aberavon takes over as the Secretary of State for justice or legal administration and my hon. Friend the Member for Norwood (Mr. Fraser) takes over as his deputy. It will mean a radical departure in legal administration.
Hon. Members have heard much praise for the Lord Chancellor in respect of this and other Bills which have been initiated by him. I must admit that I have never seen the Lord Chancellor in the other place. Marvellous tablets of stone come down from the other place to be discussed in this place. They then go back amended—if one can amend tablets of stone—and we never get the chance to question the Lord Chancellor or ask him to tell the House his thinking behind certain aspects of policy.
One of the most important aspects of the creation of a department of legal administration is the presence in the House of a Minister accountable to Parliament and responsible for a whole Government Department which is of major concern to ordinary citizens. There is no point in giving rights to people, either nationally or locally, if those rights cannot be enforced properly. With this new clause, we seek to ensure that a Minister will be responsible for those aspects of policy and can be questioned.
I agree with the comments by my hon. Friend the Member for St. Helens, South (Mr. Bermingham), who said that 15 minutes of questioning every three weeks is not enough. We should like to see the Attorney-General and the Solicitor-General much more often in the House. I am disappointed when I have to read about developments such as the initiation of the family hearing centres in newspapers and in press releases from the Lord Chancellor. I should much prefer the Attorney-General to come before the House and make such statements as a Minister with responsibility for a whole Department.
My hon. Friend the Member for St. Helens, South is the most senior member of the Select Committee on Home 584 Affairs, on which I serve. He is right when he says that that Committee does not have time to ensure that the work of the Lord Chancellor's Department is scrutinised. I know what the Attorney-General will say. He will say that a major inquiry has been held into the Crown prosecution service. I believe that that was the first major inquiry into the workings of the Lord Chancellor's Department.
There are many other policy aspects that the Select Committee has not dealt with. I should like an inquiry to be held into the administration of the legal aid fund. We have been unable to hold such an inquiry. I should like an inquiry into the administration of justice in civil cases, but the Select Committee has not had time to do that. I should like an inquiry to be held into judicial appointments. It cannot be done, because the Select Committee does not have sufficient time in which to hold such an inquiry. Because of the number of inquiries that the Select Committee is to undertake in the next year, there will be insufficient time to inquire into even one part of the operation of the Lord Chancellor's Department. That is why a Department with a Minister responsible to the House of Commons is needed. A Select Committee which could carefully scrutinise the work of that Department is also needed.
We should also like the Attorney-General to tell us more about the Crown prosecution service. When a Minister is made responsible to the House of Commons, we hope that detailed debates will be held into the operation of the Crown prosecution service. Despite the fact that a major inquiry has been held into the Crown prosecution service, it has been debated in this place only once. When I was fortunate enough to win first place in the ballot for Adjournment debates, I decided that we should debate the Crown prosecution service. That was the first occasion on which the Attorney-General came to the House and admitted that the operation of the Crown prosecution service was causing problems.
I went to Nottingham a couple of weeks ago to address the annual general meeting of the Law Centres Federation. I hope that one of the first tasks of the new secretary of state for justice, or minister with responsibility for the department of legal administration will be to ensure that there is a network of law centres throughout the country. It has long been the Labour party's policy to establish a law centres network. Certain parts of the country—Croydon is one—have no ready access to law centres.
I worked for three years in a law centre in Leicester. There is no better way for citizens to obtain quick, efficient and cheap advice than from law centres. We should consider the possibility of creating a network of law centres that makes use of the services of those who work in citizens advice bureaux. I hope that, when my right hon. and hon. Friend the Member for Aberavon (Mr. Morris) starts his first day as Minister with responsibility for these matters, he will announce to the House the creation of a network that we have talked about for 11 years but that we have had no chance to initiate.
I strongly support the new clause and I hope very much that the Attorney-General will support it too. If he does, he will have the privilege of being the first Minister in the history of Parliament to be totally responsible for a Government Department of legal administration. We shall be happy to give him that privilege, because the principle is so important.

585

§ Mr. Austin Mitchell
I thank you, Mr. Speaker, for calling me to speak to the new clause which stands in my name. I also thank my right hon. and learned Friend the Member for Aberavon (Mr. Morris) for taking the two principles that I tried to embody in amendments that I tabled in Committee and turning them into something much more effective than I was capable of doing. The two new clauses embody two important principles to which I am strongly attached.
The first is a ministry of justice. I make no apology for discussing such principles this late at night. It is not our fault that we are forced to debate major issues such as this at the tail end—one might say the fag end—of the Session and late at night. It is the fault of the Government's casual DIY approach to the Bill. They have rushed in long, complicated clauses on Report after the Bill has passed through the House of Lords and Committee. They did so to pre-empt the time necessary to discuss the fundamental principles behind the new clause.
Like my hon. Friend the Member for Leicester, East (Mr. Vaz) I prefer to call the ministry of justice the department of justice, because the present title is somewhat cumbersome. A ministry of justice is a vital principle. 1 have always been an advocate of relieving the Lord Chancellor of certain functions. I yield to none in my admiration for the present Lord Chancellor. He is a breath of fresh air, vigour and reform, partly because he comes from the different and somewhat better legal tradition in Scotland. He has come to the job with clear, fresh eyes and a vigour of which the conservative profession in England was not capable.
It has always seemed to me that the tripartite role could best be dealt with by removing the Lord Chancellor's function as a judge and employing a benign and avuncular actor to preside over the deliberations in another place. Robert Morley springs instantly to mind, or perhaps Lord Hailsham could make a comeback in his successful career of presiding over another place. I would transfer the functions specified in new clause 24 to a proper ministry of justice of the kind that every civilised country has and which we, too, should have.
My hon. Friend the Member for Leicester, East has made the case for the new clause eloquently and articulately. I shall not repeat it. It is important that the principles embodied in the new clause are discussed in the House. There is no doubt that, if we had had a ministry of justice, we could have achieved reforms in the judicial system, reforms in the appointment of judges and law reforms such as that which my hon. Friend mentioned, and which I too would like to see, to provide for a system of law shops. In such centres justice could be provided quickly and effectively to people who came in off the street. The awe, mystique and expense of justice would be removed. If we had had a ministry of justice, we as politicians accountable to the people would have seen the inadequacies of the system and pressed for change. Only that insulation from pressure has made the system of justice so inaccountable.
The judicial system is at the end of the day a service industry that must serve the purposes of the people. For that, the voice of the people must be influential. It must be heard. The system must be accountable to the representatives of the people in those important functions and provisions. That is the basic principle. If the system was accountable to the House we would have a better and more adequate system.
586 New clause 26 would create a judicial appointment commission. It deals with the basic question of the nature of judges. I emphasise two points. First, we need proper and adequate training to create a genuinely trained professional body of judges such as exists in the rather different system in France. The judge is the last bastion of the English amateur tradition which has been inadequate in so many respects. If we had a proper system of training provided by the judicial appointments commission proposed in the new clause, and a staff college for judges, we would have a more effective system of justice. A more representative body of judges would be achieved by that method.
It is interesting that the incoming president of the Law Society has made one of his aims for the year to secure a more representative body of judges—a wider range of appointments. He wants to see solicitors appointed. We have heard comments from many sources about the unrepresentative nature of the bench. Sir David Napley, a former president of the Law Society, said: The appointment of judges has long been in need of radical overhaul. It's too tied up with the old boy network. He said that it is clear that the appointment of judges should be subject to independent scrutiny. I echo those comments. We have an unrepresentative body of judges which needs to be made more representative. It needs to be made professional by a judicial appointments committee.
10.30 pm
The people who have the greatest control over the appointment of judges seem to be incumbent judges. Every new High Court appointment is preceded by a meeting between the Lord Chancellor and the heads of divisions. They exercise a negative veto. All sorts of reports and complaints can be brought to bear against people put forward. The system is controlled not by politicians but by the incumbents. That means that it is not responsive to social developments in our society. It is a self-reinforcing system. The judges, seeing themselves as the fount of wisdom, like to see new judges as chaps like themselves. That is one of the main road blocks on the way to reform.
There can be no argument about the unrepresentative nature of judges. A report of research by Lord Gifford published in 1986 says: judges are from a narrow social background, almost all white, male, upper middle-class, from an independent school and Oxbridge. The Labour research department did a study of 465 judges, which was published in January 1987. It said tha more than one in three of them is past the state retirement age of 65. Age does not necessarily bring wisdom, although in my own case it does. It has been said of others that they immature with age, but I do not think that that can be said of me. Age is no automatic guarantee of wisdom. It is open to question whether we are keeping judges on for too long in the present structure.
Only 17 of the 465 judges were women and there was only one black judge, although there were four judges of white South African extraction. The report looked at all the categories of judges and proved that the exclusive nature exists at all levels of the system.
I tabled some questions to the Attorney-General a couple of weeks ago. They yielded the information that there are 83 High Court judges, of whom 27.7 per cent. are aged between 60 and 69 and 10 to 12 per cent. between 70 587 and 75. They are obviously youthful and vigorous and full of new ideas, ready to respond to the challenges of change and adjust to the new society in which we live.
The second question to the Attorney-General yielded the information that 77 per cent. of the 83 High Court judges went to schools listed in the Independent Schools Yearbook. That means that they went to private schools. Some 80 of them, 96 per cent., went to university, and 84 per cent. of them went to either Oxford or Cambridge. They were all chaps drawn from that narrow, class background and, in almost every case, from the Bar, which is unrepresentative and, given the pattern of entry to it, will remain so. It is almost essential to have either a working wife or private wealth to persevere through the system.

§ Mr. Bermingham
indicated dissent.

§ Mr. Mitchell
I am not quite sure what help my hon. Friend had, but he certainly did not have a bursary while working part-time in another job. It is necessary to come from a fairly substantial background. That means that judges represent a class, a restrictive range—

§ Mr. Bermingham
Will my hon. Friend give way?

§ Mr. Mitchell
I was merely making a joke.
That narrow range means that they are prejudiced because the judges are not representative of the wide range of views in a pluralistic society as they should be because they are dealing with that society's problems. It is partly that narrow, restrictive range and backgroud that gives judges their attitude and makes them see themselves not as protecters of the liberty of the subject or guarantors of the rights of people who want to be empowered in our society, but as the defenders of the Executive. They see themselves as lions under the throne, rather than defenders of rights.
That is a tragedy to those of us who would like to see some definition of rights. I was one of three Labour Members who voted for the incorporation of the European convention on human rights into British law. Now, 230 Labour Members believe in it because it has become party policy, but we three were a little advanced because we did so before that. But it is difficult to justify that incorporation given that we cannot trust the judges because they come from such a narrow range and have such a restricted set of attitudes.
I was fascinated to read in a recent book by Professor Keith Ewing, "Freedom Under Thatcher", arguments that point to the conclusion that it is difficult to have a Bill of Rights in this country when we have such a narrow, unrepresentative range of judges with such prejudiced attitudes. It makes the point that, had Robert Bork been proposed for high judicial office in this country, as he was in the United States, he would have been appointed. There would have been no criticism, no review, no possible contest in the House of Commons. We have no accountability to reveal the weaknesses or attitudes of such people.
The book goes on to argue that we have a narrow, unrepresentative range of people, adjudicating on issues such as a woman's right to abortion. Such wide social issues are determined by a group of men, appointed from the same background. Judges are given the power to disrupt decisions and adjustments made by the processes of politics, which are those of persuasion, compromise and agreement. From their restricted background the judges 588 blunder into difficult ethical, social and political matters which are then subject to the prejudices of that narrow range of people.
It is interesting that so many of the legislative developments, the restrictions of freedom, which have gone on under this Government, were anticipated by judicial development before Parliament passed the legislation to consolidate them—for example, the police power to regulate public assemblies in the Public Order Act 1986. Many of the restrictions on political freedom that have taken place in the 1980s have not been the result of legislation, but judge-made initiatives, authorising the extension of Executive power. The judges anticipated and sanctified the restrictions on freedom of movement, freedom of the press and freedom of assembly because they come from such a narrow range of backgrounds.
I should like to quote the remarks on social issues of one or two of this ancient, white, unrepresentative group of judges. Judge Raymond Dean told a rape trial jury: When a woman says no. she doesn't always mean it. Judge Bertrand Richards, of Lancing college and Oxford, told a woman who had been raped that she was guilty—

§ Madam Deputy Speaker (Miss Betty Boothroyd)
Order. The hon. Gentleman is straying quite a long way from the new clauses, and his comments are not relevant to what we are debating. I should be glad if he would return to the points in the new clauses.

§ Mr. Mitchell
I should have thought it perfectly legitimate to quote the judges to illustrate the unrepresentative composition of the bench of judges, Madam Deputy Speaker. However, I shall move on.
We propose a way of ensuring that the judges are more representative, that they are trained to do the job, and that they view themselves not as lions under the throne defending the Executive but as defenders of the rights of the people. The judicial appointments commission proposed in the new clause is rather like the sort of civil service commission which has given us such a high quality of civil servants. Why should not the judges be subjected to that sort of commission's search for excellence?
I commend those points to the House as major advances.

§ The Attorney-General
It is characteristic of the hon. Member for Great Grimsby (Mr. Mitchell) that, having indulged himself in a recitation of a well-known operatic style of denunciation of the judges, he should now go off to talk to his hon. Friend the Member for St. Helens, South (Mr. Bermingham). Nevertheless, I invite him to deal with the facts.
The hon. Gentleman regaled us with a long catalogue of supposed illustrations of the bias of the judiciary towards the Executive. I cannot quote him verbatim because he spoke at such length and with such rapidity, but in essence he said that the judges are on the side of the Executive and have never done anything to protect the liberty of the subject.
I should like the hon. Gentleman to think about the emergence of judicial review, of which I do not doubt he has heard. Judicial review was not the creation of this House—[Interruption.] I hope that the hon. Member for Great Grimsby will not leave the Chamber now, because I want him, if he will be good enough to do so, to pay attention. Judicial review was not the creation, as I say, of Parliament; it has been the creation of the judges over the 589 past 25 years. It has been a proper curb on the exercise of power by the Executive. Is not it strange that this socially privileged, biased and protected judiciary should have set about finding a means with which to protect the individual against the Executive and excessive use of power? That is something of an anomaly, given the pattern with which the hon. Gentleman regaled us.
The hon. Member for Great Grimsby must think about this: judicial review is the one way, in the absence of a written constitution, in which the courts can acquire jurisdiction over the use of Executive power. That blows the whole of the hon. Gentleman's thesis out of the water—

§ Mr. Austin Mitchell
Will the right hon. and learned Gentleman give way?

§ The Attorney-General
I shall not. It is 10.45 pm, and we have already listened to the hon. Gentleman—

§ Mr. Vaz
On a point of order, Madam Deputy Speaker. The Attorney-General has patronised my hon. Friend the Member for Great Grimsby (Mr. Mitchell). He is making highly personal comments, yet refuses to give way.

§ Madam Deputy Speaker
What is the point of order for me? I do not think that there is one.

§ The Attorney-General
For about half an hour the hon. Member for Great Grimsby spoke on a fairly familiar theme. The two new clauses contain much of obvious importance. For example, the importance of the selection of the judiciary is self-evident. We should approach the matter upon the basis of a sensible appreciation of what judges do and their record. Those of us who know the people who became judges in the time that we have been in the profession, know that is absurd to say that there is some sort of bias towards a social background of one kind or another. The same applies to those who are called to the Bar or who become solicitors.
10.45 pm
There is a disproportionate number of women judges, but one must remember that judges are appointed from the legal profession and the Bill seeks to broaden the pool from which the judiciary can in future be recruited. The Government are entitled to credit for that. Because of the demands imposed by practice at the Bar, it is harder for women than for men to make a go of the Bar. We hope that the position is improving. I think that I am right in saying that at present more than 50 per cent. of students admitted to the Inns of Court are women.
It is extremely important for the judiciary to be representative, and the Lord Chancellor has taken substantial steps to see that numerically and in other ways the judiciary becomes more representative of the community.
New clause 26 deals with the appointment of a judicial appointments commission. The Lord Chancellor's practice, which has been followed by all his recent predecessors, is to take full and careful advice. That means wide and continuing consultation with the judiciary and the leaders of the profession. Much work has been carried out by his Department to identify the best candidates. It is wrong to say that the Lord Chancellor is not responsible and not answerable. He is answerable to the House of 590 Lords and, by reason of our arrangements, I am answerable to the House of Commons for the Lord Chancellor's business.
If there were a series of bad appointments, the Lord Chancellor would be called to answer for that, and so would I. It is a mistake to suggest that, per se, a commission is likely to be better at achieving the results that we all want than the Lord Chancellor, who uses the machinery at his disposal, and consultation. In the past 10 years, the system has been greatly improved. There is no secrecy about it, and the Lord Chancellor's predecessor published a book entitled "Judicial Appointments", which brought matters into the open. Consultation is now wider than it has ever been and thought is continually being given to the best methods of gaining information on possible black, women and solicitor candidates. A two-year experimental initiative has been set up in limited parts of the country to identify solicitor candidates for part-time judicial appointments. Much more is being done.
It is satisfactory that an increasing number of black and women barristers are progressing successfully at the Bar. The hon. Member for Great Grimsby spoke about judicial training, which is important. I do not go along with his comparison with the French judiciary. That would require much more research than the hon. Gentleman has been able to give it. The Judicial Studies Board is worthy of his attention, as is the work that is put in nowadays to training the judiciary at every level, rather than just after judges are appointed. Great progress has been made in that regard.
New clause 24 would create a department of legal administration, answerable through a Minister or Ministers to the House of Commons. Although it is proper for hon. Members to put forward the arguments that they have made tonight, it is not a practical proposition to incorporate into the Bill, without even discussion in Committee, such a major constitutional change. The clause would make a Minister in the House of Commons responsible for administration of the courts, appointment of the judiciary, legal services and most of the other functions that at the moment fall to the Lord Chancellor and his Department. That is undesirable.
I feel that there is great merit in having the Lord Chancellor sitting in the House of Lords, as he is thereby removed from the full force of party politics. That helps to protect and maintain more effectively the independence of the judiciary. The Lord Chancellor remains accountable to Parliament as a whole for the way in which he carries out his ministerial duties, in the same way as those Secretaries of State who have been Members of the other place have been. The Law Officers answer for the Lord Chancellor in the Commons. I do not know whether the House considers that satisfactory, but it gives the Treasury value for money.
The new clause would also establish a statutory judicial appointments commission. That proposal was considered by the Government, and rejected as not offering the same advantages as the present system. It also suggests that the Lord Chancellor should be responsible for supervision of the legal profession. He has a general responsibility for the health of the legal and judicial systems, but it is no part of the Bill to give him the task of supervising the legal profession directly. That would provide the means for unacceptable interference by the Government in the affairs of the independent and self-governing professions. Those are major disadvantages.
591 The hon. Member for St. Helens, South asked four factual questions, of which the first was: why will not the Legal Aid Board grant the costs of experts in criminal cases? That is a good question to put to the board, which is independent. I am prepared to answer for anything in the jurisdiction of the Lord Chancellor, provided that the hon. Gentleman takes the trouble to write to me about it, and give me particulars.
The hon. Gentleman's second question was: why has a senior judge had to write about the competence of prosecuting counsel? If the hon. Gentleman cares to write to me about that and to give me the particulars, he knows that I shall deal with it. The next two questions were: why is grade 2 work being given to grade 3 people, and is it because of shortage of funds in the CPS? Why are rape prosecutions being hawked around the Temple, and is it because the fees are not enough? Under our present arrangements, all those questions can be put to me, provided that the hon. Gentleman raises them, and I will answer them, as he knows. It does not need the paraphernalia of a department of legal administration to be set up to get somebody to answer such practical questions here in the House.
I have enjoyed listening to the arguments. The horse has been trotted out, although not to a crowded grandstand. I understand that it represents the Labour party's policy in those matters, but I must invite the House to reject the new clause.

§ Question put and negatived.