§ The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie)
With permission, Mr. Speaker, I should like to repeat a statement made in the other place by the Lord Chancellor and Secretary of State for Constitutional Affairs on the judiciary-related functions of the office of Lord Chancellor.
On 14 July, the Government published consultation papers on the establishment of a new way of appointing judges, the creation of a new supreme court and the future of silk. In September, we published a paper on the abolition of the office of Lord Chancellor; and we are grateful to those who responded to our consultation process. The Government are today publishing summaries of these responses. As set out in the Queen's Speech, we intend to bring forward legislation to enact these changes. It is for Parliament to consider that legislation, and the proposals today are conditional upon parliamentary approval.
Today I wish to set out our proposals for the future handling of those functions of the office of Lord Chancellor which relate to the judiciary. The Secretary of State has had detailed discussions with the Lord Chief Justice, who has been speaking on behalf of the judges on these issues. I am pleased to be able to tell the House that the terms of today's statement have been agreed with the noble and learned Lord, the Lord Chief Justice. The Lord Chief Justice's agreement is of course conditional on Parliament's approval of our proposals. It is right, though, that Parliament should be told first of the results of the discussions.
In making changes, we must secure embedded, enduring judicial independence, good working relationships between the judiciary and the Executive, high-quality judges, and high public confidence in the judiciary. I believe that, taken together, our reforms and the proposals in this statement will help to secure those aims.
The reforms seek to clarify and embed in statute the principle of judicial independence. Judges must enforce impartially the law made by Parliament. The Executive must continue to guarantee security of judicial tenure and remuneration and ensure that the judiciary is supported by an efficient and effective system of court administration. We propose, then, that there should be a general statutory duty on the Government, all those involved in the administration of justice, and all those involved in the appointment of judges to respect and maintain judicial independence. In addition, there should be a separate, specific duty falling on the Secretary of State for Constitutional Affairs to defend and uphold the continuing independence of the judiciary.
However, the judiciary does not operate in a vacuum—it is part of a constitutional framework in which Parliament is the supreme law-making body. The Government, through Parliament, must ensure that the needs of the public are fully served by our legal system. Parliament must be able to hold the Government to account for the operation of the justice system and the resources provided for it. That clearly requires a partnership, and the Secretary of State is determined— 22 as is the Lord Chief Justice—that the successful partnership between his Department and the judiciary should be sustained and entrenched for future generations.
But to maintain that partnership without blurring the boundaries of responsibilities requires clarity and transparency. To that end, we intend to define in the forthcoming Bill the respective responsibilities of the Secretary of State for Constitutional Affairs and those of the Lord Chief Justice, as the most senior judge in England and Wales. The Bill will make it clear that the Secretary of State is responsible for the administration of the courts, that he is accountable to Parliament for the efficient and effective running of the courts system, and that he is responsible for supporting the judiciary in enabling it to fulfil its functions. The Lord Chief Justice will lead the judges with the authority that comes from being appointed as chief judge. He will be responsible for ensuring that the views of the judiciary are effectively represented; he will be responsible for the education and training of judges; and he will be responsible for decisions on the deployment of individual members of the judiciary. The Lord Chief Justice should therefore be given the additional title of President of the Courts in England and Wales. He should also no longer be President of the Queen's Bench Division of the High Court—that should become a new post in its own right. We propose that responsibility for setting the overall framework for the organisation of the court system should be exercised by the Secretary of State, in consultation with the Lord Chief Justice. But when it comes to the posting of individual members of the judiciary within that framework, responsibility should fall to the Lord Chief Justice.
We announced in July the Government's proposals for a Judicial Appointments Commission and consulted over the summer on the detail. Central to the appointments process will be a new, clearly independent Judicial Appointments Commission. The commission will have full responsibility for the process of advertising vacancies and evaluating candidates for judicial appointment. No candidate will be appointed to the judicial posts for which the commission will be responsible unless recommended by the commission.
The sole criterion for the commission in making its recommendations will remain that appointments must be made on merit. To ensure proper accountability to Parliament, the final decision on who to appoint or who to recommend to the Queen for appointment should remain with the Secretary of State. However, the Secretary of State's discretion must be severely circumscribed. He should only be able to appoint candidates recommended by the commission and should have strict, limited powers to challenge those recommendations. It is not right that a political appointee, albeit one always acting in good faith, should be able to cut across the system to appoint who he or she thinks is right.
Magistrates are a very important part of the judicial family and we propose that equivalent arrangements should apply to magistrates appointments. On the advice of the local advisory committees, the Judicial Appointments Commission will make recommendations to the Secretary of State, who will have the same limited powers to reject as he does in relation to the professional judiciary. For 23 administrative reasons, the commission will not be able to begin dealing with the appointment of professional judges and magistrates at the same time, and we propose, therefore, that for an interim period the Lord Chief Justice will fulfil the role of the commission for magistrates appointments.
It is vital that the commission itself should incorporate the expertise of the judiciary and of the legal professions but also the demonstrable impartiality and wider experience of those who are not from the legal world. We propose, therefore, that the chair of the commission should be neither a lawyer nor a judge and the largest single group on the commission should be of members who are neither lawyers nor full-time judges. The commission will include members from each level of the judiciary up to the Court of Appeal and be required to consult the Lord Chief Justice during the recruitment process. The Lord Chief Justice will be able to engage judicial colleagues, and that will ensure that the commission is able to benefit from the views of the judges about potential candidates and about any particular requirements for a vacancy.
In order to ensure that the system is as open and accountable as it can be and that it is independent of Government, we propose that the commission should be fully responsible for the appointments process itself. It should recruit its staff and submit an annual report detailing its activities over the year. To provide a further guarantee of the system's impartiality, the commission should establish a system for handling complaints from candidates who are unhappy with the way in which their application has been handled. We shall further provide for an ombudsman to deal with those instances where a candidate remains dissatisfied.
I want to make it clear that appointments will continue to be made strictly on merit. However, our proposals will greatly improve the transparency, openness and fairness of the appointments system. By doing so, they will help to ensure that the judiciary of the future fully reflects the diversity of the community that it serves—a goal that both the Government and the judiciary seek.
I am pleased to announce that Dame Rennie Fritchie, the Commissioner for Public Appointments, has agreed to chair the appointing panel for the commissioners. The Lord Chief Justice will also sit on the panel, as will one other member, who will neither be a member of the Government nor a civil servant, to be nominated by the Commissioner for Public Appointments. Once appointed, the chair will be on the panel for the appointment of the other commissioners.
The education and training of the judiciary is the responsibility of the Judicial Studies Board, which is chaired by a senior member of the judiciary and, although staffed by members of my Department, is under the control of the judiciary. The Lord Chief Justice will be responsible for the provision and sponsorship of judicial training within the resources provided by the Secretary of State, with a continuing role for the Judicial Studies Board. We shall further propose that the Lord Chief Justice should in future appoint both the chair and members of the board after consultation with the Secretary of State.
24 The Secretary of State—the Lord Chancellor—and the Lord Chief Justice will both continue to have a role to play in relation to judicial discipline and conduct. That partnership reflects the importance of respecting the independence of the judiciary, providing assurance to the public that complaints about judges are subject to proper scrutiny, and of providing accountability to Parliament for the complaints system. In the most serious cases, in which it falls to be considered whether a judge should be removed from office for incapacity or misbehaviour, removal will be by the Secretary of State with the agreement of the Lord Chief Justice. It will not be possible unless they both agree.
For the higher judiciary, removal will continue to be by Her Majesty the Queen on an Address from both Houses of Parliament. Such cases will first be investigated by a judge of appropriate seniority, and will be able to be referred to a review body. In less serious cases, the Lord Chief Justice and the Secretary of State will need to agree on any penalties short of dismissal to be applied to a judge. They will be supported in that work by a complaints secretariat, and will both be consulted about all complaints of any substance, as well as receiving regular reports about all other complaints dealt with. For all cases involving magistrates, local input will continue. The Secretary of State will be accountable to Parliament for the efficient and effective operation of the complaints system as a whole and will continue to deal with correspondence from peers and Members of Parliament on this subject.
To provide greater certainty and transparency about the process for handling such complaints, the Bill will provide for a complaints procedure to be agreed by the Lord Chief Justice and the Secretary of State and set out in secondary legislation. As a further guarantee of the openness and fairness of the new complaints process, we propose that the complainant or the judge concerned should be able to refer the handling of a complaint to the ombudsman.
A number of posts, such as the senior presiding judge and the presiding judges, do not involve formal promotion to a more senior judicial level. These roles, which are held for a relatively short term by different judges in succession, entail a degree of judicial leadership and a range of administrative functions. We propose that, in future, such appointments should be made by the Lord Chief Justice, either in consultation with or with the concurrence of the Secretary of State.
The making of the rules of court is a key means of giving effect to the policy decisions approved by Parliament. Responsibility for the making of rules will remain with the relevant rule committee. The Secretary of State will allow or disallow rules. We propose, however, that the power to alter rules should be repealed. Instead, we propose a new power to allow the Secretary of State to require a rule committee to make new rules or to change existing rules to achieve a particular desired outcome. It will then be for the committee to consider how best to frame the rules to meet such a requirement, and to submit or re-submit them to the Secretary of State.
The policy that I have announced today covers the position in respect of England and Wales. The Secretary of State's responsibilities also extend to Northern Ireland, and consideration will also be given to the future handling of his functions that relate to the 25 Northern Ireland judiciary. That process, which is currently under way, will include consultation with the Lord Chief Justice of Northern Ireland, and will be based on the same guiding principles that apply in England and Wales, taking into account any provision already made for Northern Ireland to give effect to the recommendations of the Northern Ireland criminal justice review.
The Lord Chief Justice, the Secretary of State and I will listen carefully to all the views expressed today in the House and elsewhere. The House will have a further opportunity to consider these issues in more detail when legislation is introduced. To assist in such consideration, we have today placed in the Libraries of both Houses an explanatory document—which I know that the hon. Member for Rutland and Melton (Mr. Duncan) is dying to see—that sets out these proposals in even more detail. With parliamentary approval, the reforms that I have set out will guarantee for future generations that the independence of the judiciary is protected. They will clarify the relationship between the Executive and judicial arms of the state, improving each arm's accountability, and will promote and strengthen partnership so as to serve the public better.
§ Mr. Alan Duncan(Con) (Rutland and Melton)
I thank the Minister for providing an advance copy of the statement. Unfortunately, however, this is yet another step in the sorry saga following last summer's botched reshuffle, in which the Lord Chancellor was suddenly abolished, and then miraculously resurrected. The Government have embarked on a programme of reform that has no rhyme or reason to it. There is no special call for it, and there is certainly nothing but danger in it for the maintenance of high-quality justice devoid of political interference. Its only motive seems to be the Government's need to parade some sort of spurious radical momentum.
The Government have cobbled together in a piecemeal manner an attempt at a coherent policy. It has not been thought through, and it satisfies only a quite elementary standard of political theory. Indeed, why has the Minister decided to do this without consultation on the very day on which he is publishing the responses to four other, related, consultations? We have been told today of a change to the interrelationship between the Lord Chief Justice and the Secretary of State for Constitutional Affairs, but without any clear legislative context.
The Government have always claimed that their reforms are designed to protect judicial independence, and we heard it again today. We have always argued that they are not, because when they speak of judicial independence, they advance arguments in favour of the separation of powers. Well, now we have it in black and white. Judicial independence is clearly secondary, as the document that they have published alongside today's statement says:The overall aim of these reforms is to put the relationship between the executive, legislature and judiciary on a modern footing, respecting the separation of powers between the three.The Government fail to understand even now that the separation of powers is a concept that might suit other countries' constitutions and presidential systems, but is a theory that has never applied in Britain. The danger of forcing such an inappropriate theoretical template on 26 our structures, which are substantially different, is that it risks creating no end of dangerous consequences and unforeseen conflicts.
Is it not the case that today's document makes a mockery even of the separation of powers? It is riddled with no end of requirements to consult, confer and do things concurrently—not so much a separation as a mess. Is it not also the case that inasmuch as there is an attempt to separate powers, it is not a balanced structure, because the Secretary of State has swiped all the powers that matter most—it is a system of checks and imbalances?
Over the past few months, the Government have put the judiciary in an impossible position. For fear of losing many precious elements of judicial independence, they have been forced to bow to political pressure and protect whatever they can. We do not blame the judiciary for a moment, and in the face of what amounts almost to duress, the Lord Chief Justice and his judicial colleagues have behaved with dignity and propriety.
Let us not pretend, however, that the Lord Chancellor's proposals enjoy the enthusiastic endorsement of the judges. They do not. At best, they have their reluctant acquiescence. They have been left with no option but to salvage whatever safeguards they have been able to negotiate. It is entirely the fault of the Prime Minister and the Lord Chancellor that they have been compelled to express their position in secret negotiations instead of open debate. Parliament has been totally bypassed—we will just be asked to rubber-stamp a fait accompli.
The fundamental flaw in the Government's changes is that they think that a rules-based separation of powers will work better than the existing structure. It will not. What is likely to ensue is a dramatic erosion of the independence of the judiciary, with a real risk of its increasing politicisation. It also risks pitting the judiciary and politicians in permanent open conflict. Does the Minister claim that today's proposals do have the enthusiastic endorsement of the Lord Chief Justice, and that the removal of the Lord Chancellor is Lord Woolf's preferred option and now supersedes the opinion that he gave in the Cohen lecture in December, in which he said:the disappearance of the Lord Chancellor will leave the Judiciary more exposed to the attacks of politicians"?What is the point of getting rid of the office of Lord Chancellor, who protects the judiciary by taking the judge's oath, when the Government have had to concede that the Secretary of State for Constitutional Affairs will have to have a specific statutory duty to safeguard judicial independence? What does this statutory duty mean for the rest of Government in that, hitherto, all Secretaries of State have been equal and interchangeable, and yet there will now be one who is different? The Government have come up with a cast list for the Judicial Appointments Commission. But what is their justification for the composition proposed? How is it better than the present system of consultation?
What does it mean to say that the judiciary must be reflective of society? The Lord Chancellor and the Minister have said that it is only merit that matters, but they have also included that applicable criterion. What exactly must it reflect? How many existing judges under the current system does the Minister think should not be 27 in their job? How does he reconcile appointment only on merit with a parallel requirement for them to be reflective of society? Will the decisions—I request seriously an answer to this—of the Secretary of State for Constitutional Affairs in the discharge of his statutory duty be open to judicial review or will they not, and will, indeed, the entire Government be so liable?
To us, this reform contains dangers for judicial independence. Its facile radicalism reveals that the Government have no understanding of the value of our existing arrangements. The present system may look odd in theory, but it works in practice. Our only interest is in the quality of justice for Britain. We want to keep high-quality judges, exercising their duties in the best possible way, free from posturing politicians trying to control them or second-guess their judgments. This proposal does the opposite: it creates a pale imitation of the existing Lord Chancellor, operating in a highly politicised environment. He will have most of the powers of the Lord Chancellor and none of the responsibility entrenched in convention and traditions of conduct. It is a backward step, and we will resist it.
§ Mr. Leslie
I regret the comments of the hon. Gentleman, who is resisting from gut instinct, rather than looking at the detail of what is proposed. I realise that those in the Conservative party are always looking to preserve the status quo from their Westminster-established viewpoint—never mind what the wider public and the wider world think. In fact, they were due to publish a legal reform policy paper some time last Thursday. I have looked all over to see whether I can find its contents; I have not seen it yet, but perhaps the hon. Gentleman may have a chance to send it. It was mentioned in The Daily Telegraph on Thursday.
It is right that we end the blurred role of the office of Lord Chancellor. It has a very important series of functions. It should not be perceived as an antiquated role, but all those different elements should be regarded with the importance and vigour that they deserve, and it is important that we move forward with these sensible reforms, but in partnership with all the different stakeholders, and the judiciary in particular. The hon. Gentleman says that the Government are now talking about the separation of powers as the only avenue down which their policy is developing. Of course it is true that we want to ensure that we clearly define the separation of powers, where it is appropriate, but that is not incompatible with having a partnership between the different branches of the state. That is entirely right, and it is what we want to see.
The hon. Gentleman may not be aware that the Lord Chief Justice is commenting on these proposals, probably as we speak. He has said that he welcomes this statement and the proposals, which have his "firm support". In view of the hon. Gentleman's question on whether I regard that as an endorsement from the Lord Chief Justice, I have to say, yes, I do. He also asked whether it was possible to have an ability to keep the existing system. I believe that it is difficult to justify a senior politician at the core of the judiciary. These measures are intended to bolster and strengthen the independence of the judiciary.
28 Of course there will still be a need to scrutinise the Bill, which will be introduced in due course, and there will be worthwhile discussions about the hon. Gentleman's questions on the ability for judicial review of the different duties at that time. We want to see a general duty on all the Government, but also a specific duty on the Secretary of State, not least in view of the hon. Gentleman's comment that we need a voice in Cabinet specifically with regard to the preservation of judicial independence. Our response today helps to some extent to reflect some of those concerns.
The hon. Gentleman mentioned that he was concerned when I said that merit should be the overriding criterion in appointments—[HON. MEMBERS: "The only"]—the sole criterion in appointments—suggesting that that was somehow going against the ability to secure a diverse judiciary, reflecting the composition of society. I happen to believe that merit is not incompatible with diversity. I believe that all society can, potentially, be included in the judiciary by merit, as the sole criterion, and that we now have the opportunity to give the Judicial Appointments Commission that remit, to take an overview of those matters. Again, I hope that the hon. Gentleman will look at these proposals in more detail. It is important that we modernise our constitution not only to put the different branches of our Government and state on a firm footing, but to enshrine the independence of the judiciary, and I hope that the hon. Gentleman will reflect on that and think again.
§ Mr. David Heath(LD): (Somerton and Frome)
I welcome the early sight of the proposals and, as the Minister knows, I welcome the overall thrust of the Government's plans for judicial reform. I am, however, highly critical of the peremptory way in which they have been introduced and the desultory consultation to date. In that context, I welcome the armed truce between the Lord Chancellor and the senior judiciary, not least the Lord Chief Justice—albeit at a price. May I gently tell the Minister that that should have been the starting point in the genesis of the legislation, not a point reached shortly before the Bill is to be published?
On judicial independence, how does the Minister view elevating protection for the concept in statute to ensure that it is not subject to later attack by primary or, indeed, secondary legislation? Will he confirm that secondary legislation will be disqualified under the terms of the proposals? Will he clarify the role of the Secretary of State for Constitutional Affairs? The hon. Member for Rutland and Melton (Mr. Duncan) mentioned the collective responsibility of the Cabinet and the interchangeable role of Secretaries of State. It is essential to have a clear statutory basis for the particular position of the Secretary of State for Constitutional Affairs. How does the Minister expect to achieve that through the Bill? Will the staff of the Supreme Court and the Judicial Appointments Commission fall outside the remit of the civil service? Will they be civil servants—will they be seconded from the Minister's Department—or will they be entirely independent?
I welcome the Minister's retreat on the composition of the appointing committee for judicial appointments and, indeed, the appointment of Dame Rennie Fritchie, who I think will make an excellent chair. However, I question the continuing role of the Secretary of State in 29 judicial discipline. Why should the Secretary of State have any role in the new format for judicial discipline other than the final point of recommendation to the Queen for the removal of a judge? The Minister mentioned the rules of court. Can he confirm that the only Secretary of State involved in the consideration of those rules will be the Secretary of State for Constitutional Affairs—no other Secretary of State, and certainly not the Secretary of State for the Home Department?
There are several question marks about the proposed legislation. The Government have not thought through their proposals: they have not thought about the Scottish dimension or the location of the Supreme Court; and there are many other unanswered questions. When does the Minister expect to bring forward and publish a Bill? When he does so, will he have completed not just the present consultations and discussions with the senior judiciary but those required with the Scottish judiciary and the Scottish Executive and with the many other people who take a real and genuine interest in the proposals?
§ Mr. Leslie
May I first thank the hon. Gentleman for at least recognising that there is benefit from having a clear partnership between the Lord Chief Justice and the Secretary of State? We believed that it was important to draw that agreement to the attention of Parliament.
The hon. Gentleman asked several detailed questions about the statutory duty, which we envisage as applying not just to the Secretary of State for Constitutional Affairs, specifically to uphold judicial independence, but to the whole of the Government, including the civil service, to respect and maintain such independence. Enshrining that in a more formal manner is a step forward, and I believe that most hon. Members will welcome it. It will apply to secondary legislation, which also amounts to proposals by Ministers, but I know that that particular duty will be debated further, as the hon. Member for Rutland and Melton (Mr. Duncan) highlighted earlier.
We believe that it is important to have a separate general duty on the wider Government. We have debated the general interchangeability of the Secretary of State as a generic term, but we also feel that there should be a particular responsibility on this particular Secretary of State. That was regarded as one of the better elements of the current system, which we believe can be brought forward to the new one.
The hon. Gentleman asked about the staffing of the Judicial Appointments Commission and the Supreme Court. We have not announced our final policy conclusions on the Supreme Court today, but we are aware of the need to resource and supply finance for the staffing and running of those bodies. Parliament will want to hold the person accountable for that expenditure. We are working with the judiciary and others to establish what might be the best form of accountability. It might be provided through the United Kingdom Secretary of State for Constitutional Affairs, but there might well be other mechanisms.
Discipline and conduct arrangements for the judiciary are clearly sensitive issues. We must ensure that we respect independence, but also secure public accountability, on behalf of our constituents, when it 30 comes to any misbehaviour or malpractice in a court. That will be the joint responsibility of the Secretary of State and the Lord Chief Justice, because of the need for accountability. There will be concurrent agreement between the judiciary and the Government at almost every stage in respect of discipline.
Rules of court are very important. We expect them normally to be the responsibility of the Secretary of State for Constitutional Affairs. I am not aware of any specific provision preventing the involvement of other Secretaries of State, but I will consider the hon. Gentleman's suggestion.
I have no date for the announcement of legislation, but I hope that that will be done shortly.
§ Mr. Clive Soley(Lab) (Ealing, Acton and Shepherd's Bush)
I welcome the statement as another logical step in the process of constitutional reform—not least because since long before I entered the House I have found it difficult to explain or justify the fact that an active member of a political party can also be the head of the judiciary in Britain. The fact that during my lifetime that person has generally been a member of the Conservative party may explain some of the opposition that we are hearing today.
Because the detail is so important, may I ask my hon. Friend to ensure that he and his colleagues in the House of Lords are receptive to any changes that are needed? The devil is often in the detail when it comes to legislation of this kind.
§ Mr. Leslie
That is certainly true, and it will be a significant piece of legislation when we produce it. We have placed a number of documents in the Libraries of both Houses today to ensure that there is widespread awareness of the current proposals, and we will welcome comments on the responses we have received so far and the conclusions we have reached.
My hon. Friend has a reforming instinct, and I too feel that it is wrong for a politician to be at the heart of the judiciary. This is an important reform, which will put the judiciary on an independent and much stronger footing.
§ Sir Teddy Taylor(Con) (Rochford and Southend, East)
Has the Minister estimated the cost of the new commission? Will there also be a new commission in Northern Ireland, and how much will it cost? Will there be a new ombudsman's office, and how much will that cost? Who will determine the budgets? Will they be determined by the commission itself, because it is independent, or by the Chancellor of the Exchequer?
§ Mr. Leslie
Parliament will determine the amount of the resources that it votes for these purposes: that is where the ultimate responsibility lies. Of course there will be additional resource requirements for a brand new Judicial Appointments Commission, which we expect to be about £2 million or £3 million. I consider that a price well worth paying for a much more transparent process of judicial appointment, rather than a cloaked or behind-the-scenes arrangement—albeit one that has worked well to date. It is important for us to make progress, and other matters referred to in the statement 31 need not give rise to excessive costs. They will be covered by existing resources, as planned. There will be resource implications, however, and we will keep the House informed of them.
§ Mr. Tam Dalyell(Lab) (Linlithgow)
The Minister will forgive me if I did not pick this up at the time, but the hon. Member for Somerton and Frome (Mr. Heath) asked about the position of the Scottish judiciary. What, indeed, is the position of Lord Hope of Craighead and others?
Is the Minister entirely comfortable with the idea of some paragon who is not a lawyer or a judge being chairman of an appointments commission? I must say that, as a layman, I would not have the impertinence to make judgments on the merits of lawyers. Surely that must be done by a lawyer. Who the heck is he, or am I, to make such a judgment?
§ Mr. Leslie
Far be it from me to say to the Father of the House that he is not capable of performing any of those functions—I believe that he probably would be if he were to turn his mind to it. I do not think that it is an impertinence to have lay involvement in the appointment of the judiciary. It is important to broaden out the appointments process, open the doors and involve the public in it as much as possible so that we have more clarity and transparency and so that it is not something that is distant from the rest of the world. We should reconnect the judiciary with the public, so such lay involvement is important. My hon. Friend should not be so bashful in underestimating the ability of lay members.
§ Mr. Edward Garnier(Con) (Harborough)
Will the Minister tell me precisely how judicial independence is at risk under the present system? Will he tell me the implications of his statement for the ministerial and parliamentary role of the Law Officers?
§ Mr. Leslie
I do not believe that the statement has any implications for the role of the Law Officers. I set out why I think that it is important that in abolishing the office of Lord Chancellor we should have a clearer definition of the respective judicial functions of the Lord Chief Justice and the Secretary of State. The answer is that if a senior politician—a member of the Cabinet appointed by the Prime Minister—acts day to day with almost untrammelled powers at the heart of the judiciary to interpret and make laws, there is clearly a problem. We already know that there are difficulties, which is one reason why there is a strong rationale behind the creation of a Supreme Court. I urge the hon. and learned Gentleman to consider seriously the important reasons and rationales behind our proposals.
§ Mrs. Ann Cryer(Lab) (Keighley)
Is my hon. Friend aware that early last summer, Professor Erik Jurgens, a well regarded constitutional lawyer and the rapporteur of the Committee on Legal Affairs and Human Rights in the Council of Europe, appeared before the Committee of which I am member, which was at that time called the Committee on the Lord Chancellor's Department? He said that owing to our lack of a clear 32 separation of powers, if the UK were now to apply to join the Council of Europe, we would probably not be admitted.
§ Mr. Leslie
I have not met Erik Jurgens, but I have met another Eric, who perhaps has differing views on the matter. I know that the Constitutional Affairs Committee, as it is now known, under the chairmanship of the right hon. Member for Berwick-upon-Tweed (Mr. Beith), has been examining the matter carefully, so perhaps I shall review the evidence that it received from Professor Jurgens.
§ Mr. A. J. Beith(LD) (Berwick-upon-Tweed)
Is not the most significant change from the Government's original proposals that the Minister has announced today the fact that many of the most senior appointments—heads of divisions and judges of the Court of Appeal—will be appointed not by the appointments commission, as such, but by a panel of four on which the Lord Chief Justice or a Supreme Court judge will have a casting vote? Was that change necessary to deal with the level of anxiety that was expressed to the Select Committee by members of the judiciary, and does that illustrate how much work must be done on the range of constitutional proposals to get them right and deal with such anxieties? Is the Minister thus ready to recognise that the Bill must not be rushed through?
§ Mr. Leslie
Nobody wants to rush legislation, but it is important to make good progress with our proposals when they are clear and solid. The right hon. Gentleman makes an important point. We have reflected on the responses to the consultation that we received and there are slightly different proposals on the way in which the Judicial Appointments Commission would bring its decisions to bear on more senior judicial posts, which reflects the need to have a stronger input from the senior judiciary on several of the senior posts. The Secretary of State would have greater input in some of the leadership posts because they are partly administrative. The important point is that all appointments would come as recommended by the Judicial Appointments Commission, which represents the new transparency that we must bring to the system.
§ Chris Bryant(Lab) (Rhondda)
The Minister will know that many Labour Members welcome the separation of powers envisaged in his proposals, not least because every time this country has been involved in helping to draft a constitution for another country, we have insisted on precisely that separation of powers, especially in Germany. One thing remains uncertain, however. Does he believe that the new duty of the Secretary of State for Constitutional Affairs to protect the independence of the judiciary can be performed only from the House of Lords, or is it time that we repatriated those issues down to the elected House of Commons?
§ Mr. Leslie
It is entirely true that the Prime Minister will be able to appoint whomever he or she chooses in future as the Secretary of State for Constitutional 33 Affairs, and the legislation would apply to the post in whichever House that occurred. At present, the arrangements work well, and long may they continue—[Interruption.]—in respect of the current holder of the post of Secretary of State for Constitutional Affairs.
I take my hon. Friend's point on the international view. That was reflected in the comments of my hon. Friend the Member for Keighley (Mrs. Cryer). It is important that we continue to lead in the strong democratic, but also high-standing, judicial manner, in which we are held in high regard by the rest of the world. The reforms will aid that.
§ Sir Patrick Cormack(Con) (South Staffordshire)
Is the Minister aware that in answering questions he said that the present system works well; that it is important to enshrine the independence of the judiciary; and that there must not be a politician at the core of the judiciary? How does he reconcile those statements with the implicit statement that there will, indeed, be a very political politician at the heart of the judiciary, possibly someone who sits in this House and has campaigned on a party ticket? What guarantee does that give to those outside the House?
§ Mr. Leslie
If the hon. Gentleman looks at the detail of our proposition, he will see that we do not want a politician at the heart of the judiciary. That is not the proposal. The Secretary of State will not have those judicial functions. That is the whole point of today's statement.
The hon. Gentleman says that we make such announcements when there is little criticism of the existing system. We do have good judicial appointments, but it is not always best to make reforms when the system is collapsing. Sometimes the best way to progress is to make improvements in a calm atmosphere. That is precisely what we are doing.
§ Keith Vaz(Lab) (Leicester, East)
May I congratulate my hon. Friend on his proposals and give him my full support? However, he must be aware that, notwithstanding the agreement reached between the Lord Chief Justice and the Lord Chancellor, there is enormous concern among the judiciary about the way in which the proposals have been taken forward? Given the detail that will be required in establishing the Judicial Appointments Commission, does he think that there should be a pause in the timetable? I know that the Government have an ambitious timetable to get the measure through, because they are a reforming Government, but surely sufficient time must be given to ensure that the proposals are embedded in our constitution, because it is unlikely that we will deal with them ever again.
§ Mr. Leslie
My hon. Friend will no doubt be involved in the scrutiny of the legislation as it comes before the House. From end to end, we will probably have about 18 months of scrutiny from the time of the announcement of the proposals to when they are finally enacted, such is the length of time of consideration of legislative change. I welcome his support, but I do not think that the timetable is rushed. It is cautious, but it 34 also ensures that we make progress because of the agreement that we have made, not least with the Lord Chief Justice, as achieved and articulated today.
§ Sir Michael Spicer(Con) (West Worcestershire)
How do we have an independent judiciary if the whole system is about to become subservient to the European Court of Justice? Whatever the Minister does to the Lord Chancellor, can he avoid calling him Lord Speaker?
§ Mr. Leslie
The chairmanship—or speakership—of the other place is a matter for it to decide. The Government believe that we should not dictate to the other place what arrangements it should choose. It is not for this House to say how the other House should settle matters, but we will help to guide those discussions and to inform them with our reforms.
I am surprised that it has taken about 45 minutes for the spectre of Europe to raise its head. No changes have been proposed in the relationship between the legal system in England and Wales and that in Europe. I suspect that hon. Members will have to make those proposals another day.
§ Vera Baird(Lab) (Redcar)
I congratulate my hon. Friend on thoughtful progress, and particularly on the decision that the Judicial Appointments Commission will not be chaired by a judge and will not have judicial majority. I am sure that he is aware that, had it been any other way, progress towards an open-merit system of appointments would have been very slow—extracting members from the usual white male suspects. Will he reconsider his thinking on the Secretary of State's role in discipline? Would it not be better if it were at arm's length, perhaps in the hands of the Judicial Appointments Commission? In order to be an effective system and not just a hostage to public complaints, with all the attendant danger, ought there not to be proper monitoring and appraisal of judicial competence—nothing to do with independence—as there is in every other public service job?
§ Mr. Leslie
My hon. and learned Friend is a campaigner on improving arrangements for the judiciary's discipline, conduct and complaints system, and I very much respect her point of view. Although we clearly need a thorough and effective system—it is particularly for the judiciary to improve its own processes—we proposed a partnership because Parliament will need to hold to account an aspect of how we discipline the judiciary. That is not least because Parliament will in many cases have the right of final decision in making the request to the Queen concerning higher judicial office holders. I agree with my hon. and learned Friend about having lay input in the membership and chairing of the Judicial Appointments Commission. I think that that is good. It will open up the process and make it more transparent. I appreciate her welcome for the proposals.
§ Mr. James Clappison(Con) (Hertsmere)
Is not the short answer to my hon. and learned Friend the Member for Harborough (Mr. Garnier) that there is no evidence of a threat to judicial independence under the present system? Given the length of time that the system has been in place and the way in which Lord Chancellors 35 of different political persuasions have exercised their functions, is it not a bit late in the day for the Minister to claim that there is such a threat? Was he not manifestly unable to provide from the Dispatch Box any evidence of such a threat? To use the Minister's terms, is not the independence and integrity of our judicial system widely recognised in the rest of the world and among the general public? Is there not a great deal to be lost by what the Minister is doing and very little to be gained?
§ Mr. Leslie
The hon. Gentleman seems to want to continue to allow the Prime Minister to appoint a politician as head of this country's judiciary, so that that politician may sit in a judicial capacity, presiding not only in Parliament but making judicial appointments behind closed doors without any input from wider sources. I do not believe that, in saying that there is no evidence of a problem, the hon. Gentleman is looking properly at the system. The evidence rests in the construct: a political role at the heart of the judiciary. That is not sustainable. There is a manifest reason and need to remove that—to put our constitution on a modern footing and to create a clearer separation of powers. The hon. Gentleman needs to think again about the matter.
§ Mr. Douglas Hogg(Con) (Sleaford and North Hykeham)
Does the Under-Secretary understand that those who are seriously concerned about the independence of the judiciary are really troubled by his statement? Does he understand that, historically, judges have been able to look to the Lord Chancellor as one of the most senior figures in government and as someone who has very little to gain and nothing to lose? Consequently, in their battles with, for example, the Home Office, they have had a formidable spokesman. Does the hon. Gentleman understand that that spokesman is being replaced by the most junior member of the Cabinet, who is represented in this place by an Under-Secretary? What conceivable reassurance will that be to those who want an independent judiciary?
§ Mr. Leslie
To the rising star of the Opposition Benches I say that the Lord Chief Justice's statement today supporting and welcoming the statement is significant. It shows that, when he speaks on behalf of the wider judiciary, we have a partnership between the Government and the judiciary. The right hon. and learned Gentleman should reflect more seriously on the detail of our proposals. I think that our proposals bring progress in the reform of our constitution and I urge him to look again at them.
§ Mr. John Bercow(Con) (Buckingham)
Given the hon. Gentleman's laudable enthusiasm for the independence of the judiciary, would he care to remind the House and the country who will appoint the members of the Judicial Appointments Commission; 36 and given that paragraph 17 of his statement this afternoon refers, with apparent pride, to "strictly limited powers" of the Secretary of State to challenge the recommendations of the commission, will he advise us on the nature and the extent of the limitation?
§ Mr. Leslie
First, the hon. Gentleman asks, in effect, who appoints the appointers. We propose that the Commissioner for Public Appointments should chair the appointing panel, the Lord Chief Justice should be on the panel, the Commissioner for Public Appointments should pick another independent member, and once the chair has been selected, he or she should also sit on the panel. No Ministers or civil servants will be involved.
The hon. Gentleman asks what is the circumscribed role of the Secretary of State when the Judicial Appointments Commission makes its recommendations. We need to have accountability for any appointment of the Crown, so in my view a Minister needs to make the recommendation—to pass it on. I think that it would be very rare indeed for the Secretary of State to decline to accept the recommendation of the commission, but one rejection or one reconsideration of such matters should be possible. Those are our proposals regarding the severely circumscribed role of the Secretary of State.
§ Mr. Forth
For those of us who are moving towards support for the separation of powers, this is a rather disappointing statement. I was not convinced by the answer the Minister gave to my hon. Friend the Member for Buckingham (Mr. Bercow) about the independence of the Judicial Appointments Commission. We have to know a lot more about that. Instead of the Secretary of State having the powers that the Minister outlined and on which he failed to give any reassurances in response to my hon. Friend's question, will the Minister consider giving the power of final appointment—or of advice and consent, if he wishes—to the upper House, where the Government currently have and, according to their own prognosis, will have, no majority? Would not that be far more reassuring to those of us who want a genuine degree of separation between the Executive and the judiciary, if not the legislature and the judiciary?
§ Mr. Leslie
That was a rather complicated but interesting proposal regarding a potential role for the upper House of Parliament. I shall try to decipher it and examine it in more detail. The right hon. Gentleman appeared to question the independence of the Commissioner for Public Appointments, who will play the leading role in the appointing panel for the Judicial Appointments Commission. I believe that Dame Rennie Fritchie, who has agreed to chair the appointing panel, is capable of acting independently: she is not a political figure, or a member of the Government or a civil servant. The right hon. Gentleman should reflect on his comments. I believe that we can have an independent appointments process and that it can work well.