Constitutional Reform (Hansard, 14 July 2003)

§ The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie)
With permission, Mr. Speaker, I should like to repeat a statement made today in another place by my right hon. Friend the Secretary of State for Constitutional Affairs, which is as follows.
We all recognise the importance of our judiciary and our legal system to security and confidence for our communities. They deal with crime, antisocial behaviour, family and civil disputes and, through the tribunal system, a whole range of subjects that affect daily lives.
We currently have judges of complete independence, probity and very high ability. They are admired all over the world. We need to build on that to ensure that our judges and our legal system are able to meet the challenges of the 21st century. They must continue to be independent—of the Executive and the legislature. They must be able to connect with and reflect our society, and they must be able to be of the highest quality. We must recognise that improvements should occur when confidence is high.
Currently, we have a system whereby all the judiciary—I include in that magistrates and tribunal members—are appointed mainly by, or on the recommendation of, one Cabinet Minister, whereby until 12 June that Cabinet Minister also sat as a judge in the highest court in the land, and whereby before someone becomes a judge in our highest court of appeal, they are first made a Member of the legislature—namely, the House of Lords.
The efforts of former Lord Chancellors, in particular Lord Irvine, have ensured that quality and probity have been maintained, but now we need arrangements that embed existing independence in a way that does not depend on one Minister and which ensures that we have not just a quality judiciary and not just an independent judiciary, but a diverse judiciary that reflects our community.
There has never been a woman appointed to sit in our final court of appeal. There has never been a black or minority ethnic judge appointed to the High Court in England and Wales. We must implement change in a way that carries the confidence of the community. including the legal and judicial community. That means we must consult widely and fully before deciding the full detail of our changes.
Today, the Government are publishing three consultation papers: the first on a supreme court for the UK, the second on an independent judicial appointments commission for England and Wales, and the third on the future of the rank of Queen's counsel. I will deal first with the proposal on a new Supreme Court.
We propose that the Appellate Committee of the House of Lords will cease to exist as the United Kingdom's highest court of appeal, and that the present Lords of Appeal in Ordinary instead form a new separate supreme court. While they are members of that court, they will not sit and vote in the House of Lords. The Government propose to transfer the whole of the 22 present jurisdiction of the Appellate Committee to the new supreme court. The time has come to take the final court of appeal out of the legislature.
The Government also propose, subject to consultation, to transfer from the Judicial Committee of the Privy Council to the new court its present jurisdiction over devolution issues. That will enable us to restore a single apex to the United Kingdom's judicial systems. The Judicial Committee of the Privy Council will, however, remain in being to continue its work as the final court of appeal for a number of Commonwealth and Crown dependency jurisdictions.
The supreme court will be a new United Kingdom court. It will stand in exactly the same relationship to the courts in Scotland, Northern Ireland and England and Wales as the Appellate Committee of the House of Lords does now. The independence of those three judicial jurisdictions will be totally respected. Arrangements will be made, as now, to secure appropriate representation for Scottish and Northern Irish judges.
The Government also propose to establish an independent judicial appointments commission for England and Wales to recommend candidates for appointment as judges. At present, judges are effectively selected by the Lord Chancellor. It is unsustainable for a Minister to continue to select judges in this way. The process of selection of judges for appointment in England and Wales must be demonstrably impartial and independent, as it now is in Scotland and will be in Northern Ireland.
Appointments will continue to be made solely on merit but, in addition, a judicial appointments commission will insulate more the appointment of judges from politicians and assist in opening up appointments to some groups of lawyers that are under-represented in the judiciary at the moment, including women, ethnic minorities and, at the higher levels, non-barristers.
The Government propose, subject to consultation, that the new independent judicial appointments commission would make recommendations to the Secretary of State. That model would significantly curtail ministerial involvement by placing the process of selecting candidates in the hands of the commission. The Secretary of State, however, would remain ultimately accountable to Parliament for the actual appointment. The model would therefore preserve the constitutional convention that the Queen acts on the advice of her Ministers.
The Government propose a balance of judicial representatives, legally qualified members and lay members for the commission. We seek views on who should chair it. It is proposed that the members be appointed by a separate appointing body. It would not include Ministers, but would be chaired by a senior civil servant, supported by a senior judge and a senior public figure entirely independent of the judiciary and the Executive. Appointments to the commission would be made under Nolan principles, which would further ensure its independence from Ministers. After the abolition of the post of Lord Chancellor, the Secretary of State for Constitutional Affairs will remain responsible for ensuring the independence of the 23 judiciary in England and Wales within the Cabinet, and consideration should be given to whether that responsibility should be embedded in legislation.
The third of the papers published today is the Government's consultation on the future of the rank of Queen's counsel, which currently designates members of the Bar and a small number of solicitors "senior advocates". The critical issue on QCs is whether the public are best served by the continuation of that rank. If they are, how should the system be changed?
Last year, the Government's wider consultation about the market for legal services aimed to find out how silk, as it is known, was actually used, and whether users were concerned about market distortions. The results, published in May, show that there is indeed some general support for silk, but that there are many concerns about how effective it is as a guide to quality in advocacy. That is why the Government are now publishing a wide-ranging paper that canvasses all the options, from improving the current silk system to abolishing it completely and leaving it to the legal profession to establish how customers are best informed about the quality of services.
Judicial appointments in England and Wales, a Supreme Court and the future of QCs are three vital issues that require detailed consideration. We are determined to ensure, in reaching our conclusions, that we enhance the transparency of our legal system, increase public confidence and bolster the independence of the judiciary from both the Executive and the legislature. In that way we can create a modern legal system that builds on its current independence and quality, ensuring the existence of a better justice system to serve the public.
I commend the papers to the House.

§ Mr. William Cash (Stone)
The new Secretary of State for Constitutional Affairs is quoted today as saying that he wants to end the Gilbert and Sullivan profusion of roles for the Lord Chancellor. Given the importance of matters that affect the very essence of our system of justice and the future of our constitution, it is to say the least a pity that the proposals of the Prime Minister and the Secretary of State began with a theatrical production that put "Iolanthe" to shame, let alone the ministry of silly walks.
My first question to the Minister is this: why are we not being given a White Paper, and a debate on that White Paper in the House? Secondly, where are the transfers of functions orders? Without those, what is the statutory basis for the Minister's role in the House of Commons, especially as the new Department is the fourth largest spending Department? The lack of any such order raises serious issues of accountability for public expenditure in the House.
On 19 June, the Prime Minister told me that the matter would be dealt with once the position of Lord Chancellor had been abolished. As that can be done only by statute, which may be a year away if it comes into being at all, how will the Government deal with the question of financial accountability to the House in the 24 meantime? The Prime Minister is behaving more and more like a Stuart monarch. He should recall the fate of those monarchs.
Thirdly, the Minister says that we have judges of complete independence, probity and very high ability. He says that that must continue. Will he explain how the current system has failed, and why he thinks that the diversity to which he refers could not have been achieved under the present system? Is diversity another word for political correctness? Bias is not exclusively political, but may result from the whim of fashion or alleged rights. It is of course important for us to have a judiciary drawn from the whole community, but is the Minister saying that diversity is more important than merit?
Fourthly, on the Supreme Court, who will be responsible for the rules of procedure, including the white book, under the proposed system? The Secretary of State is understood to have said that the new supreme court would not have the power to strike down legislation, but does that mean that the power of the Secretary of State to issue prohibition orders on the Scottish Parliament, in relation to reserved matters, will be repealed, and who will deal with excessive use of powers in devolution matters? How will Scottish appeals be dealt with in the light of the Act of Union 1707?
What is the Secretary of State's reason for excluding members of the Supreme Court from sitting and voting in the other place? That may have certain attractions, but the idea is not welcomed by many. What will be the relationship between the Supreme Court and the European Court of Justice in Luxembourg as the Supreme Court in Europe? Will the Minister clarify the role of the Law Lords? Will they attend the other place after retirement? Will the Supreme Court inhabit Somerset house? I hear that the dome is still available—no doubt the Secretary of State will be able to find his way there. In such circumstances, the court will be neither supreme nor a final court of appeal.
Fifthly, on the independent judicial appointments commission, the Minister has already said that we have judges of complete independence, probity and high ability, but he states that it is unsustainable for the Lord Chancellor to continue to select judges. What evidence can he produce to show that the appointment of judges has gone wrong? If the Secretary of State is to remain accountable to Parliament for the actual appointments, as he has stated, how can he not realise that that is bound to involve political interference, especially as, in The Times today, he made clear his determination to use his role for political purposes?
The Secretary of State owes it to the House to explain how the new commission will be able to guarantee appointments on merit and be fully independent of the Secretary of State. The Government cannot have it both ways; this is no separation of powers, as the Secretary of State has claimed.
Will it be guaranteed that those appointing the commission will be statutorily prohibited from holding discussions with Ministers or their civil servants? Does the Minister agree that the principle that judges should not be politically appointed should be balanced by the principle that they should not be politically engaged, and that, if they have become so, it is because Parliament has enacted legislation that has encouraged judges not only to interpret the law, but to seek to make it? 25 One of the criticisms of the role of the Lord Chancellor was that he was dependent on the patronage of the Prime Minister. Can the Minister explain how that has changed?
Can the Minister confirm that there will be no interference with the security of tenure of judges, or of their salaries or pensions, or with the principle established in 1688 that means that they had better behave themselves? How will that be dealt with, if at all, in legislation? Will any discipline of judges be made a matter of public record and will any restrictions be imposed on their making political comments to the media?
How can the Secretary of State confirm that the Lord Chancellor's role in the Cabinet as the arbiter of respect for the rule of law and as the most authoritative and respected member of the Government in matters of proper procedure, fairness and constitutional law will he continued if, as he has said, his successor need not be a lawyer?
Should not the new Secretary of State be answerable directly to the House of Commons? Should not his Department have a fuller Question Time? Will the system of appointments continue the process of advertising posts?
I hope that the Minister will agree that the constitutional responsibility for judicial independence is at the heart of our constitutional government. It is essential for the protection of civil liberties, to stop the abuse of power by the Executive and to ensure judicial neutrality. Does he agree that the essence of the role is fair, efficient and effective administration of justice for the people of this country, and that that role should not have been caught up in the ludicrous pantomime of the reshuffle?

§ Mr. Leslie
I realise that the hon. Gentleman needed to make some sort of political point, but after that contribution I cannot tell whether he is in favour of an independent judicial appointments commission and a new supreme court or against them. Nevertheless, I shall try my best to answer some of his questions.
The hon. Gentleman asked about Green Papers and White Papers. We have set out in the consultation documents, which are significant, a number of important questions. We seek many views on some of these big constitutional issues. Many views have already been expressed historically. We know, for example, the views of the senior Law Lord and the Bar Council about creating a new supreme court and so on. Indeed, by 7 November—the closing date for consultation—we hope that we will have a full range of representations from which to make some of these crucial decisions.
The hon. Member for Stone (Mr. Cash) asked again about the transfer of functions order, about which he is particularly concerned. I understand that that matter will go before the Privy Council in July and that it will come before Parliament in the normal way. We anticipate that there will be good notice for some of those matters, and I will certainly discuss that with him in more detail.
We need to improve judicial appointments and the role of the final court of appeal while confidence in the system is high, not to wait for the system to decay. I believe that that is the right approach. I disagree with 26 the hon. Gentleman's implicit suggestion that merit is somehow incompatible with diversity. By creating a judicial appointments commission that is broader in its scope and has a wider membership, rather than just relying on one Cabinet Minister to make the appointments, we can have the chance of a truly more diverse judiciary, which would be a major advance.
No changes are proposed to the devolution settlement, save for the impact on the Judicial Committee of the Privy Council, which currently hears appeals in devolution cases. Now that the supreme court is being taken out of the House of Lords under these proposals, the supreme court would not effectively have a bias or there would be no perception of a conflict of interests because it would not be in Parliament any more, so that would be the only significant impact on devolution in that respect.
We believe that it is important to separate the political and the judicial. That is one of the reasons why the consultation document proposes to take the Law Lords out of the House of Lords, so that they will not sit and vote in the House of Lords. Many people, not just constitutional experts, will be familiar with the rationale behind that move.
I am sorry to say, on the hon. Gentleman's pet subject, that not very many European matters are affected by these proposals, although I am sure that he will no doubt find some in the documents and come back to me at a later date.
On discipline and grievances for the judiciary, clearly the current arrangements for Parliament to express its view on the judiciary in some very extreme circumstances will not be changed. One of the questions in the consultation paper is whether or not the independent judicial appointments commission should have a role in grievance and discipline procedures.
I believe that the question of who appoints the appointers has been thoroughly aired in the consultation paper, and I hope that hon. Members will consider that. There are a number of options, but we believe that, by ensuring that there is a judicial input and the independence of a senior public figure, as well as the chairmanship of a senior civil servant, we will find a way to create a judicial appointments commission that is fair and balanced. Indeed, we have clearly set out that we would like a legal voice, a non-legal voice and a judicial voice on that commission.
The paper contains a number of questions about the role of the Prime Minister in advising the Crown, and answers are sought from those who submit representations during the consultation. I cannot say that I have a view on whether the Department for Constitutional Affairs should have more time at oral parliamentary questions, as that is a matter for the House and its authorities, and I will do whatever I need to do.
I have to tell the hon. Gentleman that, fundamentally, the significant issues that we have set out in the consultation paper are about the transparency and credibility of our judicial system—a judicial system that is important for all people in society, because there are a number of ways in which the law and how it is 27 interpreted affect ordinary people. I believe that this is a major change and a major constitutional advance, and I hope that the House will recognise that.

§ Mr. David Heath (Somerton and Frome)
I am grateful to the Minister for early sight of his proposals and even more grateful to the editors of The Times and The Guardian for even earlier sight of the proposals this morning. The Liberal Democrats largely welcome what the Minister is proposing, not least because they are policies that we have been advocating for some time, even when his predecessors were roundly defending the position of the Lord Chancellor.
On the Supreme Court, can the Minister confirm that there was little or no consultation with the senior judiciary before this policy was announced and that that omission now needs to be corrected to ensure the proper support of the senior judiciary? Can he tell me whether he intends to have discussions with the representatives of those Commonwealth and other territories that rely on the Judicial Committee of the Privy Council for their senior court of appeal? It would seem anomalous to retain that as an extension for ever in the absence of the role of the judges in another place. Can the Minister answer the question put by the hon. Member for Stone (Mr. Cash) about the premises for the Supreme Court? Does he have any views on where those should be? Does he expect an enhanced role for the Lord Chief Justice in the new judicial arrangements?
On judicial appointments, does the Minister agree that the test of the proposals is whether, at the end of the day, the appointments procedure is seen to be properly independent of political interference, seen to maintain the high quality of the judiciary and seen to achieve the diversity of appointment that we all want? Does he also agree that senior advocates are not necessarily and exclusively the only source of good judicial appointments? Will he look at the proposal that the commission should bring forward a shortlist from which the Secretary of State will still select? I think that that undermines the proposals, and he should look carefully at whether an alternative exists.
Lastly, on the funding of the transitional arrangements, the Minister will know that the resources available to the courts in all divisions, including the lower courts, are extremely stretched at the moment. Will additional funding be made available for the transitional arrangements so that the new supreme court and other arrangements are not set up at the expense of local justice, at the expense of the accessibility of justice, and at the expense of the maintenance of the fabric of the judicial system as it is at present?

§ Mr. Leslie
The hon. Gentleman, as usual, tried to claim this as a Liberal Democrat idea. I am sure that in some dark recesses of Liberal Democrat manifestoes, they might have alluded to the judiciary at some level or other, which might justify the claim. Nevertheless, he asked a number of specific questions.
First, on consultation with the senior judiciary, clearly, decisions have been made that in principle we want to have a supreme court separate from the 28 legislative branch of government. I believe that the consultation papers will provide the opportunity not only for Members of Parliament but the wider public and the judiciary to express fully their views on some of the fundamental questions that need addressing.
On the question of Commonwealth and dependent territories and whether they will have an input into the changes affecting the Judicial Committee of the Privy Council, those are decisions for them. If independent countries wish their appeal mechanisms to come to the Privy Council, we will look to continue that. No change is envisaged at this stage in that respect. Clearly, however, they will have their own views on how they want their legal systems to evolve, and we will respect that.
The hon. Gentleman raised an important question about premises and where a supreme court would be housed. We do not have a fixed view yet, and it would be slightly perverse if we decided that at this early stage, with some of the questions still unanswered in the consultation paper. As the concept of the supreme court takes shape, so we will, as we are doing now, work up our final thoughts on potential premises.
Issues affecting the Lord Chief Justice in some detailed respects are contained in the consultation papers, and I commend those to the hon. Gentleman. It is important—I agree with him to this extent—that we have a judiciary that is seen to be freer of potential political interference. That is why we are seeking much greater independence in the appointments process. A number of suggested models exist for the independent judicial appointments commission. One is to have a shortlist suggesting a number of names to Ministers. Another is for a shortlist of one, effectively. That is the Government's preferred option at this stage but, again, it is open for consultation.
Typically, for a Liberal Democrat, the hon. Gentleman asked about resources, although it is a fair question. We envisage that costs will be associated with the creation of a Supreme Court, given that it will need to be taken out of the House of Lords. We will make sure that provision is made.

§ Ross Cranston (Dudley, North)
Will my hon. Friend confirm that the creation of a supreme court is in no way a reflection on the quality of our highest judiciary, which, as I think he implied, is the envy of the world? During the consultation, will he take account of the cardinal principle that appointments must be made on merit, but that merit is not inconsistent with drawing the highest judges from a wider pool? Consideration could he given to such matters as gender, ethnic background and—I declare an interest here—making appointments from the academic legal community.

§ Mr. Leslie
I am sure that several opportunities would open up as a judicial appointments commission began its work, but it would not be right for me, as a politician, to express a view on who should be appointed in the first flush of appointments to such a commission. I agree with my hon. and learned Friend that the highest judiciary and, indeed, all our judiciary is of extremely high quality and international repute. Probity is the 29 watchword of the judiciary's work. It is extremely important to bear in mind the point that I made about making improvements now while confidence is high.

§ Mr. Richard Shepherd (Aldridge-Brownhills)
The Minister must surely recognise that this is a new high— or low—in new Labour tosh. The truth is that his statement was based on an unreasoned assertion. I speak as a libertarian, and whatever the faults and demerits of our present system, it has delivered a judiciary that has been able to defend our liberty. No one seriously attacks the processes by which we have reached that. Does the Minister recognise that most of us think that his statement was merely a cover up for a really botched Government reorganisation—the worst in the 19th, 20th or 21st century?

§ Mr. Leslie
I am sorry that the hon. Gentleman takes that view. If he thinks that a Cabinet Minister should sit as a judge, I respectfully disagree with him. He might think that the final court of appeal should be in the legislature and make judgments on matters of public policy, but potential perceived conflicts of interest arise from that. We must not shy away from addressing such anomalies, as we are doing in the consultation paper.

§ Mr. Frank Doran (Aberdeen, Central)
I welcome my hon. Friend's statement and any attempt to bring the legal profession and, especially, the judiciary into the 20th century. Will he say—[Interruption.] That was deliberate. Will he say a little more about the potential effect in Scotland and, especially, will he tell me what consultation has taken place with the Scottish Executive on the proposal? What safeguards will exist to ensure that an appropriate number of Scottish judges serve in the new court? Will he comment on the view expressed by several voices in Scotland that existing arrangements are embedded in the Act of Union and will require special treatment? What consideration have the Government given to that?

§ Mr. Leslie
I thank my hon. Friend, especially given his legal background, for his questions about Scotland. It is important that we continue to work closely with the Scottish Executive and the Northern Ireland Office and although we have responsibility for the Welsh courts, I am conscious of the interest of the National Assembly for Wales. Scotland and Scottish devolved maters will be affected in several ways. For a start, there will be a change regarding the Judicial Committee of the Privy Council. We do not envisage any change to the current situation in which no criminal appeals come from Scotland to the House of Lords as the final court of appeal, although issues arise regarding the granting of leave to hear civil cases in the final court of appeal. I urge my hon. Friend to examine the questions about that in the consultation paper and I would welcome his more detailed consideration.

§ Mr. John Wilkinson (Ruislip-Northwood)
Who will appoint the judicial appointments commission and were the changes instituted because of the adverse report made by the Parliamentary Assembly of the Council of Europe on the Lord Chancellor's office? Were the suggestions about a Supreme Court made because of the notorious Hoffman case regarding conflict of interest in 30 the Pinochet trial? Were the changes suggested because of personality: were the excesses of the outgoing Lord Chancellor such that it was deemed appropriate to remove not only him but his office?

§ Mr. Leslie
I am sorry to disabuse the hon. Gentleman of those views. I know that this will be difficult for the Conservative party to understand, but we are making the change as a matter of principle. It is a major constitutional advance, and I have set out our reasons for the change. On who will appoint the independent judicial appointments commission, the papers suggest some ideas, one of which is to have an independent appointments panel comprising a senior civil servant, senior judge and senior public figure, perhaps independent but available in public life, such as the Commissioner for Public Appointments. That is the right way to deal with who appoints the appointers. Again, I commend those papers to the House.

§ Dr. Jack Cunningham (Copeland)
Is it not obvious that the announcement will be widely welcomed by everyone who is sensible and practical about the long-overdue constitutional reform proposals? Is it not instructive, especially in respect of the supreme court, that ever since 1945, with the reconstruction of Europe and Commonwealth independence, successive British Governments have always insisted on the creation of a supreme court, quite separate from any parliamentary or legislative actions, in the countries that were receiving independence? As it is one issue—the removal of the Law Lords from the House of Lords—raised by the Joint Committee on House of Lords Reform, can my hon. Friend tell us when the Government will respond to the other recommendations in that report?

§ Mr. Leslie
The Government intend to respond shortly to the second report of the Joint Committee. I pay tribute to my right hon. Friend's work and stewardship of that body. The creation of an independent judicial appointments commission and the step to have a supreme court taken out of the second House is long overdue. An Act of Parliament was passed as far back as 1873 to do just that, but the Government who followed that Administration decided not to commence it. So here we are ensuring that we take a long-overdue step forward.

§ Sir Patrick Cormack (South Staffordshire)
As the Secretary of State for Constitutional Affairs will remain responsible for ensuring the independence of the judiciary in England and Wales, and as that gentleman will be appointed by the Prime Minister, are we not witnessing the subjugation rather than the separation of powers?

§ Mr. Leslie
No. The arrangement was that the Lord Chancellor was appointed by the Prime Minister to be a judge while sitting in Cabinet as a politician. As I said, consideration will be given to whether we should enshrine in the responsibilities of the new post of Secretary of State for Constitutional Affairs a duty to safeguard the independence of the judiciary. That is one question that we have posed and it merits detailed consideration.

§ Mr. Clive Soley (Ealing, Acton and Shepherd's Bush)
Before this dotty idea that somehow or other it would be 31 Politically correct to have women judges escapes from the Tory Front Benches, can we make it crystal clear that confidence in justice is largely brought about by the full involvement of a cross-section of the community in the judicial system? That being so, the fact that we have not had a woman judge is a serious criticism of our system over many years. It is not, however, a criticism of the existing holders of those posts.

§ Mr. Leslie
My hon. Friend is right to say that a woman has never been appointed to sit in our final Court of Appeal; nor has a black or minority ethnic judge been appointed to the High Court in England and Wales. Diversity is important. Our judiciary should reflect the public on whose behalf they seek to implement judicial decisions. Creating an independent judicial appointments commission, with a broad spectrum of people doing the job of selection, will enrich the process so that we have a more diverse judiciary that is appointed on merit.

§ Annabelle Ewing (Perth)
Surely the Government's announcement represents consultation after the fact because the decision to establish a UK supreme court was taken last month in Downing street at the time of the botched reshuffle. There was certainly no prior consultation in Scotland. It is not clear from today's proposals whether the necessary criterion of independence from the English legal system will be secured for Scotland. Surely the time is now right in post-devolution Scotland to repatriate the final appellate jurisdiction to the Scottish courts. It surely remains an anomaly that the United Kingdom has any jurisdiction over the matter whatever.

§ Mr. Leslie
The hon. Lady suggests a major change to the arrangements that have worked well for some time under which the House of Lords hears cases as the final Court of Appeal, which we envisage will be conducted through the creation of a UK supreme court. Although there are detailed issues in the consultation paper that affect Scotland, the fundamental separation of the Scottish system will continue and be entirely respected. It is important to keep those separate jurisdictions. It is also important that we have a supreme court that is taken out of the political realm and the second House of Parliament. I hope that the hon. Lady will come round to the view that that is reasonable.

§ Mr. David Kidney (Stafford)
Does my hon. Friend share my view that all reasonable people will welcome the proposals on judicial appointments and the supreme court as a considerable enhancement of the separation of powers under our unwritten constitution? Will he confirm that the consultation process is precisely that announced at the time of the reshuffle, but that some chose not to hear the message on that day?

§ Mr. Leslie
My hon. Friend is entirely right. I know that he has been involved in several discussions and documents that have prompted thought on some of the major issues. Circumscribing the role of Ministers and the power that they have, especially in the appointments, 32 process are important changes. That is a major step forward, which I know that my hon. Friends will welcome.

§ Mr. Douglas Hogg (Sleaford and North Hykeham)
Does the Minister understand that many of us feel that he has got his priorities wrong? Is this not simply change for the sake of change and at additional cost? What will the new supreme court be able to do that cannot as well he done by the Judicial Committee of the Privy Council and in the House of Lords? If he wants to make a real improvement, why does he not transfer responsibility for constitutional and legal matters from an unelected Secretary of State sitting in a largely nominated House loan elected Secretary of State sitting in this House?

§ Mr. Leslie
The creation of the post of Secretary of State for Constitutional Affairs is a major advance. It is difficult to see how a Lord Chancellor could be answerable in the House of Commons. The initiative of a Secretary of State for Constitutional Affairs should give both Houses an opportunity for further scrutiny and accountability. The right hon. and learned Gentleman suggests that such a matter is a low priority that does not need addressing. If there is a perception of a blurred line between the political and the judicial, surely we all have a duty to address ourselves to it. That is one of the many reasons why we have done so.

§ Dr. Alan Whitehead (Southampton, Test)
May I add my welcome to that of my hon. Friends for these long-overdue reforms, especially the proposal to establish an independent judicial appointments commission? Serving members of that commission might have an opportunity to become members of the judiciary. What arrangements does my hon. Friend intend to make concerning those appointments—either while those people are serving or after their term has ended?

§ Mr. Leslie
The consultation paper suggests that about 15 people should form the independent judicial appointments commission—roughly equal numbers from the judiciary, legal background and non-legal background. It would clearly he inappropriate for members sitting on a judicial appointments commission to hear their own personal applications. I am sure that arrangements can be made, and I shall certainly bear in mind any issues on the matter.

§ Mr. Jonathan Djanogly (Huntingdon)
If the Government are determined to pursue these botched proposals that in respect of judicial appointments will destroy a system that works perfectly well, will they now consider going for elected judges rather than another round of appointed cronies?

§ Mr. Leslie
The Conservative party seems to innovate policy on its feet from moment to moment. If a Conservative Back Bencher wishes to put forward such views, I suppose that that is entirely possible. We do not envisage having elected judges. We feel that the vast majority of important aspects and criteria of the current judicial system should be kept and enhanced. One way of enhancing that system would be to ensure that the 33 appointments process is properly seen to be independent, and to ensure that we insulate it from, perhaps, questions of political interference.

§ Mrs. Anne Campbell (cambridge)
I warmly welcome my hon. Friend's statement. Although I agree that the current system works well, it is shocking that a woman has never been appointed to sit in the final Court of Appeal, nor a black and ethnic minority judge appointed to the High Court. Will my lion. Friend ensure that rather than just leaving these matters to the independent judicial appointments commission, he consults widely with community groups and others concerned about the promotion of equality so that we get a more diverse group of people in our highest courts?

§ Mr. Leslie
My hon. Friend makes a suggestion that an independent judicial appointments commission could well take forward. It would be a matter for it, in its wider work, to examine new ways of ensuring that applications were brought forward from as wide a range of potential judges as possible. There are issues in the consultation paper that would help to bring forward the extra diversity that my hon. Friend seeks.

§ Mr. Peter Luff (Mid-Worcestershire)
Whatever the merits or otherwise of these proposals, does the Minister understand that as someone who had the privilege of working as Parliamentary Private Secretary to the last Conservative Lord Chancellor, Lord Mackay of Clashfern, I find it particularly difficult to accept that the last Lord Chancellor, Lord Irvine, has been particularly effective in ensuring the quality and probity of the judiciary? I would draw a very different conclusion from the Minister, and it is this: if even Lord Irvine could ensure the quality and probity of the judiciary, the system ain't broke and don't need fixing.

§ Mr. Leslie
That is a somewhat circuitous argument from the hon. Gentleman. It seems easy for Conservative Members to take pot-shots at the former Lord Chancellor. Actually, he was responsible for a number of major constitutional advances that I think all hon. Members on cold reflection would recognise and appreciate. We are taking new steps to modernise the constitution, and the House should welcome that.

§ Keith Vaz (Leicester, East)
I warmly welcome the Minister's statement. I congratulate him and the Secretary of State on these proposals, which have been proposed after the short period that they have had in office.
First, I heard what my hon. Friend said about elected judges, but if the weight of opinion on consultation favours an election to the commission, will the Government stand in the way of that idea being initiated? Secondly, will my hon. Friend confirm that there will be a new organisation, and that it will not merely be a case of the judicial appointments part of the old Lord Chancellor's Department moving over to the new judicial appointments commission, otherwise, it would be the same people making the recommendations?

§ Mr. Leslie
On the last point, it is important that we have officials who assist a new independent judicial 34 appointments commission, who can help to bring out some of the fresher ideas that my hon. Friend seeks. As for elected judges and perhaps an elected judicial appointments commission, these are not issues that have been brought out in the consultation paper precisely because we wish to draw a clearer distinction in our constitutional arrangement between the political and the judicial. I believe that that is the history of our constitution, but taken to a more modern phase. We shall consider all the representations as they are made.

§ Mr. Geoffrey Clifton-Brown (Cotswold)
Do not these changes, involving the separation of powers, mean that the judiciary and Parliament will become ever more separate from each other? Was it not a thoroughly good thing, and the reason for the system working over the centuries, that the two were linked through the Lord Chancellor? They were also linked because some of our most senior judges in the land were exposed to the pressing issues of the day by sitting in the House of Lords. Does the Minister agree that these changes are likely to lead to further conflict between the judiciary and Parliament, and will not that ultimately be to the detriment of the British people?

§ Mr. Leslie
I disagree with the hon. Gentleman. One of the models posed in the consultation document is for the independent judicial appointments commission to recommend a shortlist of one or a number of names to a Minister of the Crown so that, while the Minister is taken out of the selection process in sifting applications and so forth, the constitutional convention of having a Minister make recommendations to the Crown and then be accountable to Parliament for such recommendations could be preserved. At this stage, we are in favour of a recommended commission model but, again, we wish to consult on it further.

§ Mr. George Foulkes (Carrick, Cumnock and Doon Valley)
I assure my hon. Friend that for the real radicals, the proposals are not only warmly welcome but long overdue, particularly if they result in fewer judges who went to Oxbridge and public school—[Interruption.] I apologise to my hon. Friend the Member for Cambridge (Mrs Campbell). However, on the Supreme Court for the United Kingdom, while I encourage my hon. Friend to consult the Scottish Executive and other interests in Scotland, he should take account of the fact that parochialism and self-interest affect some parts of public life in Scotland. In fact, I am beginning to believe that girning is becoming the national sport of Scotland. If there were Olympic medals for girning, the hon. Member for Moray (Angus Robertson) would be in line for the gold.

§ Mr. Leslie
My understanding is that the sport of girning requires its participants to have false teeth, and I would not want to suggest that any hon. Member is in that position. I do not believe that the description of parochialism fits the Scottish public at large, but I accept that we must pay particular care and attention to important and delicate issues affecting the devolution settlement, especially as they apply to the United Kingdom Supreme Court. I shall certainly bear my right hon. Friend's recommendations in mind.

§ Mr. Graham Brady (Altrincham and Sale, West)
In September 1998, the Lord Chancellor's Department introduced new guidelines on the appointment of lay magistrates, saying that the Bench must reflect an area's voting pattern as evidenced by the last two general elections. Given that history, how can we have any confidence at all that the Government will not seek to politicise appointments to the judiciary as well?

§ Mr. Leslie
I am glad that the hon. Gentleman raised that issue about the magistracy because, again, the consultation paper looks at the role of the current Lord Chancellor in the appointments process of the magistracy. We envisage retaining local input in the selection process, but in our view that is best done via a judicial appointments commission, independent of Ministers. The hon. Gentleman made an important point about political balance, which we would not want to upset.

§ Mr. Gordon Prentice (Pendle)
These are excellent proposals and the Government deserve a pat on the back. I hope that Queen's counsel will be done away with. We do not have queen's surveyors or dentists. QCs are an anachronism and ought to be done away with. Let the market decide.

§ Mr. John Bercow (Buckingham)
Is the hon. Gentleman an advocate of the market?

§ Mr. Prentice
Absolutely—I am new Labour.
May I ask my hon. Friend the Minister about the judicial appointments commission? I take it that it will report annually to Parliament, setting out the criteria that it uses to recommend appointments to the Bench. How long will individuals serve on that commission? I hope that they will not have a lifetime appointment.

§ Mr. Leslie
The paper includes a recommendation in response to a question about how long members may serve on a judicial appointments commission. There will be mechanisms in place so that such an independent body is accountable through reports to Parliament. On the question of QCs, the Government do not have predetermined answers to the questions that we have set out, but we feel that the rank of QC needs strong justification. If it is to remain, it needs to be of demonstrable benefit to the users of legal services, and such benefit has to outweigh the disadvantages with which the House is familiar.

§ Mr. Peter Duncan (Galloway and Upper Nithsdale)
Is the Minister proud of the way in which he has cynically excluded the Scottish Executive and the Scottish Parliament from the proposals, thus reinforcing the view that the Scottish legal system has been relegated to a footnote in the Government's proposals? As conflict resolution is increasingly common in post-devolution UK, can he address the point made by the hon. Member for Aberdeen, Central (Mr. Doran)? Exactly how will the Government ensure that there is adequate representation for Scottish judges in the new United Kingdom court?

§ Mr. Leslie
There are proposals in the document to ensure that we have the right numbers of Scottish and Northern Irish judges in the supreme court and the panels within that. I am surprised to hear those on the Conservative Benches crying for greater consultation with the Scottish Executive and Scottish Parliament, but I heed the hon. Gentleman's comments. We will continue to work closely with both those institutions as we develop the proposals.

§ Vera Baird (Redcar)
I congratulate my hon. Friend on these overdue proposals, which will bring the worst aspects of our legal system screaming—believe me, they will scream, and my hon. Friend should not weaken—into the modern world. The suggestion from the Opposition Front Bench that diversity in the judiciary will endanger quality is an insult to those many women and ethnic minority lawyers who work hard now and who do not get promoted. It is not a sign that the system is working perfectly or that it am not broke when there is not a single woman judge in the highest court in our country, though there are three good ones, but only three, in the Court of Appeal and six good ones, but only six, in the Queen's Bench Division. Does not the dearth of women and ethnic minorities reflect the secret sounding system whereby white male Oxbridge-educated judges inevitably recommend clones of themselves? QCs—may I turn to that?

§ Mr. Speaker
Order. I had the impression that I called the hon. and taught Lady to ask a question. Perhaps the Minister could try to answer.

§ Mr. Leslie
I pay tribute to my hon. and learned Friend for the forensic way in which she posed her question. She recognised that the proposals were a major advance in our constitutional and judicial system, and that it is right that there should be a stronger separation between the executive, the legislative and the judicial branches of our constitution. I cannot wait to hear her views on QCs.

§ Mr. Bercow
Given his professed commitment to increased independence in judicial appointments, why cannot the hon. Gentleman see at best the unwisdom and at worst the absurdity of proposing for the chairmanship of the body that will choose the members of the judicial appointments commission a senior civil servant who, whether the hon. Gentleman likes it or not, is by instinct, training and contract accountable not to the wider world, but to the Executive?

§ Mr. Leslie
The hon. Gentleman highlights one proposal in the document relating to the independent judicial appointments commission. and I am grateful for that. These are important issues. I await his detailed and lengthy dissertation on them. I know that he is concerned about who selects those who appoint the judiciary. We share that concern, but we believe that there are arrangements in the paper that will give a measure of extra independence and confidence in the legal system, which all hon. Members seek to achieve.