§ 7.17 p.m.
§ Lord Lester of Herne Hill rose to ask Her Majesty's Government whether they will seek to improve the procedures for the election of judges to the European Court of Human Rights by the Parliamentary Assembly of the Council of Europe so as to ensure that the Parliamentary Assembly is reliably advised about 76 the qualifications of nominated candidates on the basis of a transparent, thorough and fair process of interview by an independent expert committee.
§ The noble Lord said: My Lords, the European Convention on Human Rights is the jewel in the crown of the Council of Europe. The European Court of Human Rights, the guardian of the convention system, is to protect the basic rights of almost 800 million people across Europe. From 1st November, we will have a new permanent full-time European Court to which everyone in the 40 countries belonging to the Council of Europe will have access.
§ Under the convention, each judge must be elected by the Parliamentary Assembly of the Council of Europe from a list of three nominees provided by each government. This enables the assembly to ensure that the judges selected have the qualities needed for high judicial office. The assembly should not be a rubber stamp, but party politics is not the best way of choosing independent qualified judges. Ill informed or prejudiced elections can sap independence and lead to arbitrary results. So it is important that there should be effective safeguards against the misuse of the assembly's powers in assessing the suitability of judicial candidates and in electing them.
§ The first elections for the new court took place a few months ago. Twenty members of the old court and the old commission were elected, together with 20 completely new judges. Half of them, chosen by lot, will have to stand for re-election, if they wish to continue, in only three years' time; and the other half in six years' time.
§ What prompted me to ask this Question is the seriously defective nature of the procedures adopted and carried out by the Parliamentary Assembly for the first elections to the new court. The procedures were opaque and unfair, and stood in marked contrast with the open and transparent system adopted by the British Government for selecting the three nominees. In Strasbourg as well as here, there is real concern that, in the absence of an improved system for all future judicial elections, the moral and intellectual quality, independence and impartiality of the court will be in jeopardy.
§ The problem is exemplified by what happened, and by what nearly happened, in selecting and electing the British candidate this time round. Our Government acted with admirable fairness. I pay tribute to the noble and learned Lord the Lord Chancellor and the Foreign Secretary for the procedures which were followed in this country. There was a strong and independent assessment and interview panel consisting of two judicial members, Lord Justice Simon Brown, and the Lord President, the noble and learned Lord, Lord Rodger of Earlsferry; two legally qualified government officials, Sir Thomas Legg, then Permanent Secretary at the Lord Chancellor's Department, and Sir Franklin Bernam, legal adviser at the Foreign and Commonwealth Office; and an independent lay member, Joanna Foster, former chair of the Equal Opportunities Commission.
§ The British vacancy was publicly advertised. After interviewing five of the 33 applicants, the panel proposed to the noble and learned Lord the Lord 77 Chancellor three highly creditable candidates in a specific order of preference. The noble and learned Lord the Lord Chancellor in turn secured the agreement of the Foreign Secretary and others for those three to form the British shortlist for the assembly. The candidates were, in order of preference, Mr. Nicholas Bratza, QC, the British member of the European Commission of Human Rights, Mr. Justice Carnwath, an English High Court judge, and Mr. Robert Reed, QC, a Scottish advocate.
§ Each was certainly well qualified to be elected to the European Court but the outstanding candidate was, as indicated by the selection panel and the Government, Mr. Nicholas Bratza, QC. His record as a barrister, and as a member of the European Commission of Human Rights since 1993, has been notable for the quality and independence of the judgment he has brought to bear and for his commitment to protecting human rights.
§ One would have thought his election in Strasbourg would be secure; yet events proved otherwise. A new procedure had been put in place, following a proposal made last July by the noble Lord, Lord Kirkhill, the Rapporteur for the Parliamentary Assembly's Committee on Legal Affairs and Human Rights. It required all candidates to be interviewed by a special ad hoc sub-committee. I am disappointed that the noble Lord will not be participating in this debate. He put his name down and I had hoped he would be here. I hope that there might be a similar debate in the Parliamentary Assembly.
§ The Strasbourg procedure involved a personal interview of only 15 minutes. The interview was, in the words of the noble Lord, Lord Kirkhill, "informal" and started with questions referring to the curriculum vitae submitted by the candidates. The sub-committee would, in most cases, limit itself to giving its opinion on the candidates' eligibility. Its reports were not to be made public, but were to be made available to the Committee on Legal Affairs, the bureau of the assembly, and the assembly's political groups.
§ Unfortunately, this procedure was flawed in several respects. The sub-committee had no particular expertise to interview and appraise the suitability of candidates for high judicial office. Certainly, it lacked the expertise of the panel set up by the noble and learned Lord the Lord Chancellor to appraise the British candidates. Secondly, a 15-minute interview based upon the applicant's curriculum vitae is too superficial for a thorough appraisal of candidates for the European Court. Thirdly, there were no formal rules of procedure to ensure fair and consistent treatment. Fourthly, there were no safeguards built into this procedure against the possible dangers of politically motivated, partisan or biased treatment of candidates. The members of the sub-committee were all politicians, and they had no duty to give reasons for their recommendations.
§ Some might argue that it was better to have this procedure than the old system of largely rubber-stamping government proposals; but it was essential for the new procedure to provide full and reliable information to the Parliamentary Assembly and to seek to avoid arbitrary, ill-informed and unfair decision-making.78
§ After interviewing the British candidates, the sub-committee did not limit itself to giving its opinions on each candidate's eligibility. Instead it decided against the Government's first choice of Commissioner Nicholas Bratza, QC, and instead recommended the third candidate, Mr. Robert Reed, QC. It gave no reasons for reversing the Government's order of preferences; nor did its report reveal to the assembly that it was overturning a government recommendation based upon a transparent, thorough, expert system of appraisal at the national level, which had the support of the human rights NGOs. Rumour has it that Mr. Bratza was disfavoured for having acted as counsel for the Crown on behalf of Conservative governments. That would have been a thoroughly bad reason.
§ In the teeth of the sub-committee's recommendation, Mr. Bratza narrowly won the election. But several members of the Labour group were furious, and attacked the Government quite unfairly for having secured the election of an "establishment" candidate. One member of the Labour group, Mr. Kevin McNamara MP, was so angry that he tabled nine questions in the other place suggesting that the Government had been at fault in not accepting the views of the sub-committee of the noble Lord, Lord Kirkhill.
§ What Mr. McNamara and some of his colleagues may not understand is that when the assembly appoints judges it must adopt a fair and open procedure. As my friend David Pannick, QC, observed in his powerful article in The Times, the assembly's politicians should not readily depart from the conclusions reached by an objective national procedure. They should substitute their own views only if so advised by independent experts after a thorough assessment. And they should give reasons for their decisions.
§ Nothing could be more damaging to the reputation of the judicial system and the effective protection of human rights than partisan political manoeuvring, perhaps to further a grudge match between old and new Labour. If candidates for judicial office with the European Court have to satisfy an unfair and inefficient procedure, then, as Mr. Pannick points out, the court's performance and its reputation will be seriously impaired.
§ The new court will face formidable challenges. Its judges must be of the very highest quality. I hope the Government will seek to persuade the Council of Europe to improve these procedures so as to ensure that the Parliamentary Assembly is reliably advised about the qualifications of nominated candidates on the basis of a transparent, thorough and fair process of interview by an independent and expert committee. That would be an important check against the arbitrary exercise of the political power to elect members of this important court leading to perverse results.
§ 7.27 p.m.
§ Lord Ackner
My Lords, when I put down my name to speak in this debate, there was then no judge on the list of speakers. Very recently I have noticed, with great pleasure, that my noble and learned friend Lord Wilberforce has added his name and therefore, basically, I am de trop. However, having read Mr. 79 Pannick's article in The Times, I should like, briefly, to support the proposition put forward by the noble Lord, Lord Lester.
Clause 18 of the Human Rights Bill makes provision for the appointment of a UK judge to the European Court of Human Rights. In Committee, I drew attention to the provision for an English judge, if appointed, to have his pension, if it was thought fit, reduced, and in Committee I took the view that that was a thoroughly unsatisfactory provision. My noble and learned friend the Lord Chancellor, with that great generosity of spirit which he represses all too often, introduced on Report the very amendments which I wished in order to ensure that a UK judge appointed to the ECR would in due course receive the same pension as though the ECR appointment had not taken place.
The basis for support of the propositions which I had raised was that it was generally accepted that it was essential that members of this new European Court of Human Rights, who will become full time from November when the eleventh protocol comes into force, should be of the highest calibre and of outstanding quality. As the noble and learned Lord the Lord Chancellor pointed out, if a United Kingdom judge did not receive the pension to which he would have been entitled if he had remained a judge in England, that might provide a powerful disincentive to some of our most able and highly qualified candidates from the judiciary to seek appointment.
Therefore, what was stressed in that debate was the very point made by the noble Lord, Lord Lester; namely, that it is vitally important that we should ensure that the ablest candidates are appointed in due course. For that reason, it is highly desirable to make sure that those who are submitted by the Lord Chancellor and in the order of merit should be adhered to, unless of course there were good and articulated reasons to the contrary.
§ 7.31 p.m.
§ Lord Grenfell
My Lords, I am very grateful to the noble Lord, Lord Lester of Herne Hill, for raising this important Question tonight. I shall begin by declaring an interest as a member of the British delegation to the Council of Europe's Parliamentary Assembly.
To the extent that I have a difficulty with the proposal enshrined in the Question tabled by the noble Lord, it is more one of sequencing than of substance. Within the entire process of electing judges to the European Court of Human Rights, there is surely a need for an independent expert opinion. To my mind, the question is: at what stage in the process should that opinion be sought, and by whom?
The noble Lord, Lord Lester, suggests that, in any event, it should be sought at the point where the parliamentarians of the Council of Europe's assembly are called upon to review the names proposed by the "high contracting parties", to use the official term, and subsequently vote on them. Sadly, it is here that the noble Lord and I part company. It seems to me that independent expert advice would be more usefully sought at the point at which a high contracting party is 80 selecting from a pool of national candidates the three names that will be forwarded for the assembly's consideration, as indeed has been the case in this country.
If one holds, as I do, that each high contracting party has a duty to present three candidates, each one of whom is deemed fully qualified to sit on the court, the selection of those three persons seems to me to be the most crucial stage of the entire process. At that juncture, therefore, independent expert opinion has a very proper role to play and adds force and credibility to the high contracting party's ordering of the three names by preference. But the listing in order of preference should in no way weaken the force of the principle that each of the three should be considered fully qualified, as any of the three could be voted on to the court by the assembly.
That brings me to the question of how democratic the procedures are at present. New Article 22 provides unequivocally for the election of the judges by the Parliamentary Assembly by a majority of votes cast from each high contracting party's list of three nominees. With that settled, I am firmly of the opinion that, once the process has crossed the threshold from governmental nomination to assembly consideration, there should be no further intervention by the high contracting party itself, no pressure through ministerial or diplomatic channels, and no lobbying of delegates in Strasbourg by governments, public or covert, on behalf of a particular candidate. It must be left strictly and exclusively to the parliamentary process embodying the deliberations and recommendations of the Legal Affairs Committee and the ultimate secret ballot by all the members of the Parliamentary Assembly.
The delegates may or may not follow the recommendations of the Legal Affairs Committee. But that is as much their parliamentary prerogative as it is of the Legal Affairs Committee to accept or not the orders of preference of the high contracting parties. The interview process within the Legal Affairs Committee of the assembly is of great importance. In parenthesis, with respect to the existing arrangements, I would add that I would prefer that the length of interview be based on a 15-minute minimum rather than maximum, to accommodate the possibility that either the interviewers or the individual interviewee may find 15 minutes in his or her particular case inadequate. I am aware that the Legal Affairs Committee finds it no small task already to interview more than 100 candidates for a maximum of 15 minutes, but a measure of flexibility should not add unduly to the burden and should be considered worth bearing in the interests of reaching fair conclusions.
I am aware that voices are raised questioning whether parliamentarians can be entrusted to make ultimately the choice that the high contracting parties, and perhaps the national judiciaries, would consider right. That is the price of democracy. With all respect to governments and the judiciary, the scope for making a mistake is not necessarily narrower when three candidates are being selected from a well-populated pool of aspirants than when one candidate is being elected from a list of only 81 three, each of whom ought to be fully qualified to take his or her seat on the court. That is why, in my humble opinion, the requirement for a,transparent, thorough, and fair process of interview by an independent expert committee",should be met by each high contracting party at the nominating stage, affording the assembly the assurance that the best available candidates have been presented to it, and leaving the assembly free to discharge its democratic duty unfettered by further governmental or other, extra-parliamentary, intervention.
As I said at the outset, it is a matter of sequencing rather than of substance that separates me from the noble Lord, Lord Lester, on this important issue. But at the heart of the matter is a principle of the highest importance: the inviolability of the parliamentary prerogative of the Council of Europe's Parliamentary Assembly.
§ 7.36 p.m.
§ Lord Hardy of Wath
My Lords, I must say that I agree with every word that my noble friend has offered. I served on the Council of Europe for over 20 years. I ceased to be a member last September, but for l2 or 13 years I led my party's delegation. For a great deal of that time I and other British members were incensed and dissatisfied at the way in which the Council of Europe elected judges. That did not apply necessarily to the British nominees, but I raised in our political group on several occasions the absurd situation which then applied.
We would be presented with the names of three people. We would be told to vote for one of them but, usually, no one told us anything about the three people. One could sometimes obtain a little information from the delegation of the country whose judges we were about to select. However, sometimes we would have been better off sticking a pin in the piece of paper to determine our choice of vote. Indeed, on a number of occasions I flatly refused to exercise the vote because I knew nothing about the candidates. That situation went on for a very long time. Indeed, the noble Lord, Lord Lester, might like to talk to his noble friend Lord Russell-Johnston who, I believe, more or less agrees with everything that I am saying. He shared our dissatisfaction about the arrangements.
I must say that I was incensed when I read the article to which reference has been made. It was about eight years ago that I persuaded the noble Lord, Lord Kirkhill, to stand for the position of chairman of the sub-committee on human rights. The noble Lord acquitted himself so well—and I shall now bring a blush to his cheeks, as I am delighted to see that he has just entered the Chamber—that he was almost unchallenged as chairman of the Legal Affairs Committee. He held that position during the most difficult period the Council of Europe has faced while supervising and monitoring the accession of all the countries from central and eastern Europe which, by becoming democratic, qualified for entry.
The noble Lord commanded the confidence of his committee so that, when his term of office expired, having reached the maximum permitted period, he, 82 along with his sub-committee, was given the task of supervising the appointment of judges. I accept that there may have been good reasons to suggest that the length of such interviews ought to have been extended or have been capable of extension. But my noble friend has had to interview 117 candidates from 39 countries so far. I do not think the list is finished yet. Had the position been as flexible as Mr. Pannick might have suggested in his article, judges would have been interviewed for another 10 years.
That committee, which may be described as a committee of professional politicians, consisted not merely of my noble friend but of eminent professors of law and experienced and extremely highly qualified lawyers from various member states—the kind of people who do not serve in the British Parliament because the time they would have to devote to Parliament here might inhibit their practice. In other countries, parliaments sit far shorter hours and members of parliament have far more time to practise their professional pursuits. During the interviews my noble friend was accompanied by highly eminent people. It is unfortunate that there appears to have been some downgrading of the quality of the people serving on my noble friend's committee. I shall give way to the noble Lord, Lord Lester, but I hope he will be brief as I do not have much time left in which to speak.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Lord for giving way. The Question does not in any way impugn the capacity of the noble Lord, Lord Kirkhill, whom I am glad to see in the Chamber, nor of the committee. The question is whether the committee adequately went about its job of obtaining the information and of informing the assembly of what appears to be an extraordinary decision to disqualify in its recommendation Mr. Bratza and qualify the third candidate without giving any reasons for that or even informing the assembly of what it was doing.
§ Lord Hardy of Wath
My Lords, I think the noble Lord may have overlooked the fact that the sub-committee in approaching the problem of electing judges from all the member states compiled a proper structure of CVs. It was equipped with the available information. My noble friend Lord Grenfell is absolutely right, in that the Council of Europe parliamentary assembly should be cognizant of the national view but it cannot, and must not be, a rubber stamp for the administration.
I shall give the House two illustrations of why I viewed governments with some suspicion. First, the Council of Europe organised a conference in Lisbon on North/South matters. I moved an amendment which sought to be specific in securing commitment from member states, only to find that the Norwegian Conservative delegation complained to me that a diplomat employed by the British Foreign Office had entered the conference and was seeking to buttonhole members of parliament from other countries on behalf of Her Majesty's Government; that he had no business to be there; and that the Foreign Office had no right to authorise that behaviour.
83 However, the second incident was more serious. I was involved in debates at the time when the convention against torture surfaced. A member of our delegation who put an awful lot of effort into that matter was Dr. Maurice Miller. He was a practising doctor. He was also a Member of Parliament. He took a refresher course every year and treated a number of Members of Parliament, and perhaps some Members of your Lordships' House. He was up-to-date in medical practice. He had been a Justice of the Peace during his long service on Glasgow corporation.
He retired in 1987 after playing a key role in implementing the convention against torture. As regards the appointment of the committee to supervise the convention against torture, there was no one more suitable to serve on it within the European political field than Dr. Maurice Miller. However, the Foreign Office—I believe at the instigation of No. 10—did not want Maurice Miller. It wanted to appoint someone who had been a Conservative Member of Parliament but had been defeated at the previous election. He had been an enthusiast for hanging and flogging. I ask the House whether it was sane for the Foreign Office to propose an enthusiast for hanging and flogging to be Britain's representative on the convention against torture.
Noble Lords will understand why people in the parliamentary assembly were not—and indeed must not be—merely the pawns of a foreign office or of a government. I am delighted that the present Government have changed the arrangement, as it needed to be changed. It has needed to be changed for 20 or 30 years. This House should be grateful to the noble Lord, Lord Kirkhill, for the efforts he has made to ensure that the system is now a great deal better than it ever was in the past.
§ 7.44 p.m.
§ Lord Wilberforce
My Lords, like other noble Lords who have spoken I express appreciation of the action of the noble Lord, Lord Lester of Herne Hill, in bringing this matter before this House for discussion. It is a matter of extreme importance in relation to this particular appointment, which was one of great significance as the first appointment to the new court. I refer to the appointment of an eminently qualified person from the commission which is likely to set a precedent for other cases in the future, and is one in which the results happily came out right but might easily not have done. That could have led to disaster.
The system of nominating more than one person—two or three persons—for election to a judicial appointment is quite a common one. I believe it is right to look at this case in the context of what generally happens in other areas. Of course a system of that kind—submitting three names and then expecting one to be appointed—can only work satisfactorily given two things: first, that the electing body which does the actual election has proper information, competence and good sense to enable it to make a choice; and, secondly, that the nomination process is carried out carefully and conscientiously and is submitted as it should be to the 84 electing body. Of course these two considerations are closely interlinked because the stronger the nomination process, and the better that is carried out and is seen to be carried out, the more likely and appropriate that the electing body will bring itself into line and accept the nomination of the nominating committee.
For some time I have been on both sides of this process. I hope noble Lords will allow me to recount a little of my experience on this. I have been involved in the nominating process for the International Court of Justice at the Hague. There, as your Lordships know—certainly the noble and learned Lord will know this—there is an elaborate process by which the nomination of judges (not only the British judge but also other judges) is made by the national group of the permanent court of arbitration at the Hague. I have been a member of that permanent court for a great many years and have considered a great number of nominations for judges, both British judges and other judges. In every case—which is completely in accordance with Article 6 of the charter which requires consultation to take place everywhere—we have been to a great deal of trouble to find out who was the best candidate. We met. We did not interview but we considered the CVs and gathered evidence. We made our nomination in due course. In no case was our nomination of a British judge ever doubted.
It is important to remember that the actual election is carried out by a body even more democratic—if I may say so—than the Parliamentary Assembly of the Council of Europe. The election is made by the United Nations General Assembly and Security Council. One could not have a more democratic body than that. Given that process, the nomination of the national candidate is invariably accepted.
Another example is the European Court of Justice. As your Lordships know, judges there are appointed by common accord of the governments. In practice, by the common accord of the governments, the nomination of those governments is always respected. So much for the nomination side. I believe that this process works well, and can work well, given the two considerations which I have mentioned.
On the passive side, I have been nominated more than once, with others, for the European Court of Human Rights. I have been on the list, sometimes in one place, sometimes in another. I know that the noble Lord, Lord Hardy, does not approve of the way in which the list was drawn up. It was done no doubt after consultation; names were presented. If my name was not the first, I should be absolutely horrified at the idea of being subjected to scrutiny by the Parliamentary Assembly and summoned for interview. Had that been the situation at that time, I and others would never have allowed our names to go forward. That was the process. Three names were submitted, and in my experience the first name was almost invariably accepted by the Parliamentary Assembly.
However, there is the interest of the Parliamentary Assembly. It is a democratic body. Three names are submitted. It has the power, and probably in some cases the duty, to scrutinise those who come before it. It is a 85 very large body. All sorts of names may come up, possibly of people who have no experience at all in the field of human rights. It is appropriate that the Parliamentary Assembly should examine the names.
However, I humbly urge the Government not to go too far in the direction of accepting some new process by which interviews are to take place and liberty is to be taken to vary the list of national nominations. Given that the national nomination is properly carried out—as it was in this case; the noble and learned Lord took every trouble to get the best possible authority and the best possible names were submitted—and given the communication of that process to the Parliamentary Assembly, which is essential, and the reasons why they were chosen and by whom—then I firmly believe that the best process is that, in principle, the first name should be selected and the nomination process of the nominating state should be respected. I hope that the Government will continue to urge that. I am entirely in agreement with the proposal of the noble and learned Lord. We are grateful to him for having submitted it.
I wish to make just one comment in passing. I am not a great lover of interviews. I do not believe that they are the right way to select people for jobs, especially very high grade people of the kind that we are considering. However, if a parliamentary secretary wishes to have interviews, let them be proper interviews. To that extent I agree with the noble Lord. I should sooner be without interviews altogether. I am happy to endorse the proposal and hope that Her Majesty's Government will go along with it.
§ 7.52 p.m.
§ Lord Ponsonby of Shulbrede
My Lords, I should first declare an interest. I, too, am a delegate to the Council of Europe and had a vote in the elections to which the debate refers.
All noble Lords have referred to the need for a balance to be struck between the proper selection of three eminent candidates, any one of whom could be selected, and the necessity that the assembly of the Council of Europe should not become a rubber stamp. A procedure should be established to prevent that happening.
The noble Lord, Lord Lester, made a number of accusations regarding the procedure. I am not extremely familiar with it; however, I think I can talk about some of the accusations that he made. He referred to the issue of qualifications. My noble friend Lord Grenfell dealt with that point. It was certainly the expectation of the legal sub-committee that all three candidates put forward by every country should be eminently qualified. That was certainly so in the case of the British judges who were proposed.
The noble Lord also raised the question of transparency. The assembly had the right to select from the three candidates as early as 1949, under Article 39, and under Article 22 of the new Convention of 1994. There is no debate about the right of the assembly to make the choice. The question relates to the particular time when that right was fully explored.
86 The noble Lord questioned whether the procedure was thorough and fair. I have not heard any complaints from any other country as to its foulness or fairness. I have heard no accusations of political bias. I noted that the noble Lord was careful to phrase his accusation about partisanship and political manoeuvring in the abstract. I do not think that he was actually accusing my noble friend Lord Kirkhill of partisanship in any way.
The answer to the point about being thorough and fair came in the remarks of my noble friend Lord Grenfell about the sequencing of the decision-making process. He said that all the candidates put forward should be eminently suitable for the post.
The final point made by the noble Lord, Lord Lester, related to the independence and expertise of the committee. It is my understanding that there were a number of experts on the committee. As I said, I have heard no accusation of political bias other than in the now infamous article in The Times by David Pannick.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Lord for giving way. Can he think of any good reason why the candidate who was first on the list, and who was by far the best qualified for the reasons I have given, should have been replaced by the third candidate with no reasons given? No information was given to the assembly as to why the sub-committee behaved in that way.
§ Lord Ponsonby of Shulbrede
My Lords, I cannot give an answer; I do not know the reason for the sub-committee's decision. I had intended to put the point to my noble friend Lord Kirkhill and ask whether he thought there were any improvements that could be introduced into the procedure in future as regards the sub-committee giving reasons for its decision. I accept the noble Lord's point.
In conclusion, I wish to raise a wider issue; namely, the moral authority of the assembly itself. The noble Lord, Lord Lester, referred to the European Convention on Human Rights as the "jewel in the crown" of the Council of Europe. The noble Lord is right. The Council of Europe has, however, grown in stature over the past few years. That is likely to continue in relation to an attempt to raise standards in the area of human rights and the acceptance of human rights within the 40 member states of the Council of Europe. There is an argument for seeking to build on the stature of the Council of Europe rather than undermining it in any way. I hope that in that spirit the noble Lord will agree that there should be an involvement and a vote by the assembly so that it can choose the judges of the Court of Human Rights.
§ 7.57 p.m.
§ Lord Cocks of Hartcliffe
My Lords, I put my name on the list of speakers as a precaution. In January last year I tabled a Question about judicial appointments to the European Court of Human Rights—not in anger, I would say to the noble Lord, Lord Lester. Having listened to the debate, I do not feel that I have any fresh points to add. However, perhaps I may make a general point. Given the Nolan recommendations on 87 appointments, I believe that this is only one of the debates that will occur as to whether or not the systems are fair. I believe that a great deal of your Lordships' time will be taken up in future with discussions on what seemed to be a simplification of the process but will in fact make matters a great deal harder.
§ 7.58 p.m.
§ Lord Kirkhill
My Lords, if the House will permit me, I should like to say a few words in the gap. I apologise to the noble Lord, Lord Lester, and to other noble Lords who have taken part in the discussion for my non-attendance in the course of their remarks. I had inescapable commitments in Scotland and I am afraid that travel into London is fraught with difficulties. I was inescapably held up. I am at a disadvantage now as I do not know what the noble Lord, Lord Lester, said. Of course, I shall read it tomorrow in the Official Report, but it might be useful if I highlighted for noble Lords the background to the proceedings that have been taking place in the Council of Europe.
When the part-time court and part-time commission were in operation, the Parliamentary Assembly, men and women, recorded their vote as to the judge aspirant or commission member aspirant, without knowing anything at all about the candidate. They merely knew that there were candidates one, two and three. There may have been exceptions, but in the main the assembly voted for candidate one.
The consequence of the implementation of the eleventh protocol is that the full-time court now comes into operation. Members of the assembly felt that as they have to vote and have the right of appointment they should know something about the candidates. So they agreed that a sub-committee of the Committee on Legal Affairs and Human Rights, with myself as chairman, be set up to interview, on the basis of a model curriculum vitae, each of the candidates elect.
I agree that 15 minutes per candidate is not entirely adequate, although, surprisingly enough, some candidates had difficulty in filling their 15 minutes. But that is another story. I accept that generally 15 minutes is not enough, but it was against a curriculum vitae. We carried it out fairly and honourably in a non-partisan and non-political way. As the noble Lord, Lord Hardy, said a few minutes ago, the committee was distinguished in terms of its juridical input.
At least we saw the candidates. That is the first point. We then made our recommendations. To date, we have seen 117 and we have still to see the three Russian candidates. So far, it has taken myself and the other members of the committee seven full days, often working until 7.30 p.m. I honestly think that that is as much as can be expected of us, given that we are giving up our own time and there is no recompense or reward.
What the noble Lord, Lord Lester, must take into account—and he has not done so judging by the tenor of his Unstarred Question—is the following. The Council of Europe is now 40 nations strong. The majority of the nations in membership elect their judges in a quite straightforward political fashion. That may be 88 a matter for regret, many people may deplore it, but it is a political reality. That factor must be taken into account. Indeed, there are nations now saying within the Parliamentary Assembly of the Council of Europe that governments should not have the right to nominate candidates one, two and three and that the parliamentarians will get in touch with other parliamentarians and from such a discourse candidates will emerge. It is against that background that the committee met, as I said a few moments ago, and honourably, dispassionately and non-politically made its recommendations.
I wish to make one other point. We have seen candidates from 39 countries; 37 of our recommendations have been accepted by Germany, France, Sweden and Italy. Malta did not accept them and the United Kingdom did not accept them. That says something. It is for Members of your Lordships' House to decide what it says, not for me. I can only reiterate that it is an improvement on the existing system, although I do not necessarily think that it is perfect. I am certainly not prepared to say why the committee reached the recommendation that it did on the candidate for the United Kingdom. We agreed as a committee that we would discuss matters fairly, reach our majority decision and attempt then to make it a unanimous decision when we could. I may say that we did so in all cases.
The reason that initially Mr. Bratza was not our recommendation is not something I wish to make public because I have not made public anywhere the reasons for the decisions of the committee. I say to the noble Lord, Lord Lester, that I am not giving way at the moment because I wish to finish my statement. We have not made public our decision on any recommendation relative to any country.
§ Lord Lester of Herne Hill
My Lords, I am delighted that the noble Lord has explained matters. I wonder whether he could explain to the House what conceivable good reason there could have been for not accepting Mr. Bratza and how on earth the assembly was expected to exercise its powers if its committee did not give reasons so that it could know the full picture.
§ Lord Kirkhill
My Lords, I could answer in a different way. Let us take the position of the Swiss Government. The chairman of the commission was not recommended by the committee. The existing part-time Swiss judge was not recommended by the committee. We said: "We make no recommendation". One might argue that the Swiss Government would be upset by that and one might ask why we did not reach a recommendation. I am not prepared to tell noble Lords, nor am I prepared to say why we reached the decision we did regarding the United Kingdom candidate. However, in case anyone thinks that it is because I am a Scotsman and the successful recommendation was a Scots lawyer, I should point out that I was not present 89 on that occasion. Out of 117 interviews, I missed two. The two that I missed were those of Mr. Bratza and the successful nominee.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Lord for allowing me to intervene. It may be completely untrue but what was being said afterwards around the cocktail parties of Strasbourg was that the reason Mr. Bratza was not acceptable was party political. He was regarded as the establishment candidate, having acted on behalf of Mrs. Thatcher's government and Mr. Major's. If that is not the case, then fine.
§ Baroness Ramsay of Cartvale
My Lords, I am sorry but I must draw to your Lordships' attention that this is a tightly time-limited debate. It is slightly unusual in that the speaker in the gap has had longer, I believe with the grace and indulgence of the House, because of the exceptional circumstances. There is to be another speaker in the gap and we cannot allow speeches to be prolonged like this.
§ 8.7 p.m.
§ Lord Slynn of Hadley
My Lords, I regret that owing to a misunderstanding, my name was not on the list and I shall in penance be brief.
The noble Lord, Lord Lester of Herne Hill, has raised a matter of general importance to which serious attention has been given by your Lordships. The independence and integrity of the judges appointed to the European Court of Human Rights, as to the European Court of Justice, need to be assured and protected. The method of selection of the judges is a very important factor in achieving their independence. If it were seen, in particular by those who seek to assert human fundamental rights before the Court of Human Rights, that these appointments became a political football, it would detract from the value of the work of the court. It would detract from the respect in which the court is held by people who go there. It would detract from the respect in which the court is held by the judges of the national courts from whom cases will go on appeal and who will have to follow the decisions of the court.
We should perhaps learn something from the experience of the European Court of Justice, of which I was a member. People there frequently expressed great admiration of the fact that the British members who had been appointed there were appointed without political affiliation and without any political influence. The fact that I could go there, having been appointed as Treasury Counsel and as a judge by a Labour administration and as the British representative in Luxembourg and Lord of Appeal in Ordinary by a Conservative administration was regarded as a sign that the system here was applied independently.
Let us have no doubt: it was not always so in other member states. In one country, as I remember, it was well known that before the candidate was sought, it 90 was necessary to decide whether to have a Protestant or a Catholic; someone who had friends in the Conservative or Socialist administration; should his language be French or Flemish?
In another country, a judge of great experience and ability was replaced simply because it was the turn of another political party to nominate. No doubt all the people involved were excellent and well qualified to do the job and I do not suggest that they allowed their political appointers to influence them. However, the impression was unfortunate and caused considerable concern. In my view, it fully justified the decision which was taken to reject the idea put forward by those who prepared the earlier Treaty of Union that judges of the European Court of Justice should be appointed on a vote in effect on party lines by members of the European Parliament. It was felt to be safer and more efficient to have national nominations, which would be better informed than would decisions by representatives of states who had no direct knowledge of the candidates. A superficial knowledge of someone coming from 39 of the other 40 states may not be a reliable base from which to proceed.
In my view, the procedure adopted by the noble and learned Lord the Lord Chancellor satisfied the necessary tests in this case. It was open, transparent, independent and efficient. It was efficient because, among other things, it came up with the right answer. I have no doubt that the other two candidates were of high calibre but Mr. Bratza, in whom I should declare an interest since he was my pupil and my devil at the Bar, had outstanding experience and has an outstanding ability and an outstanding reputation among those who practise in this area of the law.
I hope that the system and procedure adopted by the Lord Chancellor will be followed in future and that more confidence is shown in the result which it achieves than appears to have been the case in some quarters on this occasion.
§ 8.12 p.m.
§ Baroness Williams of Crosby
My Lords, it might be said that only fools rush in where angels fear to tread, and to intervene in a discussion between lawyers and politicians might be thought to be extremely foolish. So on this occasion I speak neither as a lawyer nor, in this particular discussion, as a politician since I have absolutely no axes to grind on this issue.
The reason that I asked if I might speak in this debate perhaps relates most closely to what has just been said by the noble and learned Lord, Lord Slynn of Hadley. I should like to explain briefly why I am concerned. I am concerned because it seems to me that the Council of Europe is critical to the establishment of a culture of human rights within the extended Europe in which we now live.
I believe that the establishment of that culture of human rights, and along with it a powerful series of case verdicts to uphold it, may be one of the determining factors in whether democracy is truly established in central and eastern Europe and even beyond it in countries such as Russia and Moldavia who are now 91 members of the Council of Europe. My concern therefore is quite straightforward: whether the procedures that we are now looking at are adequate to deal with what will now be the introduction of a whole new set of nominees, many of them coming from countries where the tradition of appointing judges as instruments of the state is strongly institutionalised and strongly still the case.
Only this afternoon I was speaking to the distinguished leader of one of Russia's recognisably democratic parties, the Yabloko group led by Mr. Grigor Yavlinsky. I asked him whether he thought there were any judges in Russia today who had not come out of the tradition of judges as instruments of the state. He said that it would be quite difficult to find them. I say that as no criticism of some of the new members of the Council of Europe but as recognition that traditions of judicial independence are wholly different from those that we are used to in this country.
That brings me to the debate and I should like to refer to some of the contributions made here. I begin by saying that I shall not speak about the British proposals and nominees. I have absolutely nothing to say on that matter having no view of the merits of the three persons concerned. I am much more concerned with the arguments advanced by the noble Lords, Lord Grenfell, Lord Ponsonby of Shulbrede and Lord Hardy of Wath. I am concerned about those arguments because I think they are absolutely right in saying that it would be inappropriate for member states to intervene subsequent to the sub-committee having reported to the assembly. However, I am much more troubled by what seems to me to be still, although greatly improved, an inadequate system of determining the qualifications of those who are advanced as judges.
Let me say one word about that. The noble Lord, Lord Hardy, pointed out, forcefully and eloquently, the non-existence of any adequate system of considering the qualifications of judges in the previous arrangements before Protocol 11. I accept his word for that. That seems to me to be quite astonishing. If we now look at the new structure about which the noble Lord, Lord Kirkhill, and others have spoken, that still seems to me a long way towards inadequate. It is a long way towards inadequate, firstly, because, as I understand it, no reasons are given as to why one particular nominee is favoured over another. That seems to be contrary to a proper democratic process. As I understand it, information, including blind references about each of the persons proposed, is not available for all members of the assembly, not simply the bureaux and the political groups. I, as an academic, would not dream of appointing a single assistant professor without access to a full range of references made freely available before I made that decision.
I agree that the new system appears to be much better than the old system but I am somewhat surprised that there does not seem to be any way in which the issue can be raised of whether somebody might be believed to be unsuitable by members not only of the bureau, the sub-committee itself, but by members of the assembly. I am concerned about this for two reasons. The first is 92 the point I have already made that there will be a number of nominees put forward from some countries, not one of whom should be appointed, frankly. And, secondly, I am used to the American process in which a judge, even of an appeal court or a circuit court, would not be appointed without an extremely full system of investigation, which does not appear to me to hold in this case.
I should like to conclude by saying that while I fully recognise that the new procedure is better than the old, it still seems to me to be wholly inadequate for the challenges now facing the Council of Europe; wholly inadequate to meet the central responsibility of that assembly, which is to ensure that human rights are upheld and that the judges are the best to be found from every country that is a member. I still feel, having listened to the debate, that we have not come very far towards an adequate answer to what system should now be found given the changing nature of the Council of Europe and the heavy responsibilities that rest upon it.
§ 8.17 p.m.
§ Baroness Anelay of St. Johns
My Lords, I too thank the noble Lord, Lord Lester of Herne Hill, for giving us the opportunity to debate this matter. However, I have to say on a personal note that, having listened to all the contributions tonight from noble Lords who, as the noble Baroness, Lady Williams, has said, have an approach from either a professional legal background or a more professional political background than I have, I have concerns that one of the unavoidable consequences of this debate may well be to cause some embarrassment to Nicholas Bratza, QC, who was the successful candidate for appointment as the British judge on the ECHR. I hope that proves not to be the case.
At the outset of my remarks I wish to make it clear that I know none of the three candidates nominated by the United Kingdom for the position of British judge. I am also perfectly satisfied that Mr. Bratza is well qualified to serve as the British judge and that he will do so with distinction. Mr. Bratza, as we have heard tonight, was selected by the interviewing panel set up by the British Government to be the first preference of the three nominations that were put forward to the Council of Europe. As a lay person in these matters, I find it remarkable that the circumstances in which he was appointed by the Council of Europe's Parliamentary Assembly have become surrounded by such controversy. Let me stress that I have absolutely no reason to suppose or believe that Mr. Bratza has in any way played a part of that controversy.
As the noble Lord, Lord Lester of Herne Hill, explained, the procedure to be followed for the appointment of judges to the ECHR was agreed by the British Government and is set out in Protocol 11, of which we have heard much. It requires him to be elected by the Parliamentary Assembly by a majority of votes cast from the list of three candidates nominated by each member state of the Council of Europe. To assist in that process the assembly adopted a model curriculum vitae, which candidates seeking election to the court were invited to complete. The assembly also arranged for all 93 candidates to be interviewed by the sub-committee on Legal Affairs and Human Rights, chaired by the noble Lord, Lord Kirkhill. These procedures were to be carried out before the vote in the Parliamentary Assembly took place.
Such procedures appear to me to be transparent, thorough and fair, particularly when one bears in mind that they were to be followed in respect of candidates that the individual member states had already assessed as being suitably qualified and experienced to sit as judges in the court.
As other noble Lords explained, it was when the sub-committee on Legal Affairs and Human Rights expressed a preference for Mr. Reed as opposed to Mr. Bratza and the other British nominee who has had little mention tonight that events seem to have taken what might be called an unfortunate turn. I have heard comments tonight and read comments in Hansard of another place which lead one to believe that some of those who are supporters of the view that Mr. Bratza should be appointed mounted a lobbying campaign on his behalf. Whether or not that took place, I have no idea, but I question whether any lobbying campaign on behalf of any candidate could be consistent with a process of appointment which citizens in the European Union have a right to expect to be transparent, thorough and fair.
I read the Written Answer in Hansard of another place published on 5th May, to which allusion has been made tonight, in which the Government make clear that United Kingdom officials did not lobby voting members of the assembly about the election. That same Answer also makes it clear that there were extensive contacts between officials of this country and the other European states during which the candidacy of Mr. Bratza was supported, but within the context, as the Written Answer said,that the final selection process was entirely a matter for the Parliamentary Assembly".—[Official Report, Commons, 5/5/98; col. WA 345.]I was grateful for that clarification. In the event, as we heard, the Parliamentary Assembly voted by a narrow majority of 89 to 79 to appoint Mr. Bratza. Reference has already been made by the noble Lord, Lord Lester of Herne Hill, to the article written subsequently in The Times of 19th May by Mr. David Pannick, QC. I managed to obtain the article from the House of Lords research department at short notice when I learnt that I was to have the pleasure of speaking in this debate. I read the article over the weekend and note that it expresses criticism of the sub-committee on the basis that it did not give reasons for its recommendation of Mr. Reed. However, reasons are not given in this country as a matter of routine as to why individual judges are appointed or, indeed, not appointed. Perhaps the noble and learned Lord the Lord Chancellor can tell the House whether the Government are considering giving reasons for appointment and refusal of appointment as a matter of routine in the future and whether they would expect that to be part of the appointment procedure for those seeking judicial office in the EU.
94 When the sub-committee was considering its recommendation, it had regard to agreed criteria, including the need to have a mix between those who had served already as members of the commission or the court and "new blood", the desirability of having a range of ages among the judges, and the need to have judges of both sexes.
I recognise, of course, that the last point could not arise in relation to the appointment of Mr. Bratza in preference to Mr. Reed. But I was intrigued to note the approach to positive discrimination adopted in the criteria governing the selection process,That in case of equal qualifications between candidates preference should be given to the female candidate".I would be grateful if the noble and learned Lord the Lord Chancellor can give his view on that approach and tell the House whether he sees a future for its adoption in appointments to the judiciary in this country
Returning to the work of the sub-committee, it is important to bear in mind that, whatever its reasons may have been, all three candidates had been put forward by the United Kingdom as well qualified for the appointment. Those who speculate that the sub-committee may have preferred Mr. Reed for bad or invalid reasons should perhaps consider the implications of making such suggestions.
Earlier in this debate, the noble and learned Lord, Lord Ackner, referred to the noble and learned Lord the Lord Chancellor sometimes suppressing his good nature—but perhaps only when he is in this Chamber. I hope that tonight will not be one of those occasions and that when he replies he will agree with me that, first, the duty of government officials remains as it has always been; namely, not to promote the candidature of one candidate over another and not to be perceived as doing so; secondly, that any lobbying campaign mounted on behalf of any candidate would be unfortunate in the process of such procedures of appointment to the European Court; and, finally, that the sub-committee, carrying out its work under the rules as they currently pertain, carried out that work with due and proper diligence.
§ 8.26 p.m.
§ The Lord Chancellor
My Lords, this debate, in many ways, has been remarkable. But no feature has been more remarkable than the acknowledgement by the noble and learned Lord, Lord Ackner, that this Government are a listening government, certainly on the critical subject of judicial pensions.
I agree with the noble Lord, Lord Lester, that the European Convention is the jewel in the crown of the Council of Europe. For nearly 50 years, the convention has been the bedrock of European human rights law. For 50 years the convention has stood as the objective framework of values against which governments measured their commitment to democracy and freedom. Britain has worked throughout those 50 years to uphold the values in the convention. We were there at the beginning in the drafting of the convention, and we were the first to ratify in 1951.
95 That commitment to the convention continues today. This Government, 50 years after the convention was drafted, introduced legislation to incorporate the convention into law and so to make its provisions accessible to all in our domestic courts. The Human Rights Bill, now nearing the end of its progress in another place, reminds us that the convention remains a powerful instrument, as relevant today as it was 50 years ago. This Bill is a major pillar of the Government's programme of constitutional change. But while the rights and freedoms guaranteed by the convention remain broadly the same as those drafted 50 years ago, their relevance in post-war history has a new dimension.
While the task 50 years ago was to construct a framework for the promotion of individual rights and freedoms in a divided Europe in the aftermath of war, the task now is to establish access to those rights and freedoms across the European continent. With the enlargement of the Council of Europe, we have the opportunity for the first time to develop a continent-wide community of European values based on the respect for human rights and fundamental freedoms. The convention remains central to that aim.
A strong convention is not enough on its own. Strong laws are helpless without effective courts. This Government therefore take the view that a strong European Court of Human Rights is essential to the effective functioning of the convention. The Court and Commission of Human Rights established under the convention have done a fine job in entrenching the convention as a living and effective instrument. I pay tribute to their work. But times have changed, and with them the scale of the challenge facing the court. The court has needed to adapt to retain its capacity to meet the challenges of an enlarged Europe and to deliver proper service to the swelling numbers of those who have access to the protection afforded by the convention. That is why we continue to support the comprehensive reform process under way in Strasbourg which will bring the new Protocol 11 Court of Human Rights into operation on 1st November this year. But a court is as strong as its judges. The noble Lord, Lord Lester, drew attention to that, and he is right. We recognise the hugely important role that this new court will have to play in the newly enlarged Council of Europe. The people of Russia and the Ukraine now have access to the rights and freedoms contained in the convention. This means that the judgments of the court will help shape human rights across the European continent. This is why the Government made the election to the court of high quality judges a matter of major importance.
I listened carefully to the arguments put forward by the noble Lord, Lord Lester. I recognise their strength. I recognise too that there are few better qualified than the noble Lord to put them forward. As noble Lords will know, the noble Lord, Lord Lester, has a distinguished record of promoting tirelessly the cause of human rights in general and the European Convention in particular. This is a record acknowledged and appreciated by academics and judges at home and abroad and by practitioners and members of this Government alike.
96 The Government listen carefully when the noble Lord takes the floor to argue for reform of the workings of the convention and the Government recognise the force of the noble Lord's argument when he says that the election of judges should be founded on a clear and dispassionate assessment of the qualities of the candidates.
We attach the highest importance to the effectiveness and integrity of the election process. That is why we helped to put in place a system for the early informal exchange of information about national candidates in the Committee of Ministers' Deputies. That is why we have put forward proposals in the Human Rights Bill to allow sitting High Court judges to serve on the Strasbourg court. And that is why we have set up a fair, objective and comprehensive national selection process that attracted praise as a model of its kind.
I take the opportunity at this point to thank the noble Lord for his tribute to the selection procedure adopted and followed in this country. It included advertisements in the national and legal press and interviews by a strong and independent selection panel. It was drawn to the attention of the member states of the Council of Europe by the Secretary-General as a model of its kind. It was a model, and the proof is that it produced three candidates of the very highest quality. I recognised that when the selection panel made its recommendation to me. I was faced with an embarrassment of riches. Each of the three candidates was outstanding in his field. Any would have made a fine judge at the European Court of Human Rights. Mr. Justice Carnwath is a distinguished judge of the Chancery Division; Robert Reed, QC, is an outstanding Scottish lawyer and a particularly fine constitutional lawyer; and Nicolas Bratza is a first-class member of the European Commission of Human Rights with unparalleled experience before the court and commission. So I agree with my noble friend Lord Grenfell that the assembly could safely have elected any of the three.
The noble Lord, Lord Lester, proposes that the assembly interview procedures be replaced by a system of interviews by independent experts. But Protocol 11 makes clear, as did the convention provisions it replaces, that election to the court is by the Parliamentary Assembly. The Government respect this right absolutely. There are two means by which change might be proposed. The first would be for a government to propose the renegotiation of Protocol 11. We would not entertain such an option at present or in the foreseeable future. That is because this Government support Protocol 11 as drafted, and because such a proposal, four months before the entry into force of the new Protocol 11 court, would be counter-productive to the good functioning of the new court and therefore would be comprehensively rejected by our partner states in the Council of Europe.
The second means would be for the Government to bring pressure to bear on the Parliamentary Assembly to change its own procedures for the election of judges. As I have said before, the election of judges is a matter for the assembly. This Government respect absolutely the right of the assembly to elect judges to the court. The Government believe therefore that it is for the assembly 97 to determine its own election procedures. The question of how the assembly should manage the selection process is not for governments but for the parliamentary delegations to the assembly to decide. It would be for the assembly to consider whether a system of interviews by independent experts should be incorporated into its procedures.
The noble Lord, Lord Lester, mentioned the role of the assembly sub-committee, chaired by the noble Lord, Lord Kirkhill, which was charged with interviewing and recommending candidates for election. Let us be quite clear about who is responsible for what in this election process. The noble Lord, Lord Kirkhill, clarified it to a considerable extent. It is the task of the sub-committee to make its own recommendations to the Parliamentary Assembly of the Council of Europe according to its assessment of the candidates that appear before it. It is fully entitled to do so. It will nevertheless give weight to the views of governments in considering the merits of individual candidates, just as I and my colleagues in government give weight to the recommendations of our own selection panel when we consider our shortlist of candidates for Strasbourg. It remains the right of the Parliamentary Assembly to consider the recommendations of the sub-committee when it decides how it will vote. It will not necessarily follow these recommendations. The fact that the assembly chose in the case of the United Kingdom to follow the recommendation of the Government rather than that of the sub-committee demonstrates the practical functioning of a mature process of checks and balances.
That said, this first round of elections under the Protocol 11 system was a new experience for governments, parliamentarians and candidates alike. I think we have all learnt something. The Government would agree with the noble Lord, Lord Lester, that it is important for the Parliamentary Assembly to be reliably advised of the respective qualities of the various candidates nominated by governments. I go further. In the normal course of events, governments would reasonably expect that recommendations by the sub-committee be accompanied by reasons, especially where those differ from those made by governments.
§ Lord Kirkhill
My Lords, I am greatly obliged to the noble and learned Lord for giving way. With the last few remarks he has made I hope he is not implying that the Parliamentary Assembly was not reliably informed by the sub-committee which I chaired. It was informed in an objective and fair manner within the agreement which had been reached between the bureau, the political parties concerned and the Parliamentary Assembly.
§ The Lord Chancellor
My Lords, all I am saying is that it is right to say that governments would reasonably expect, where recommendations by the sub-committee depart from the recommendations of government, that the assembly would be informed of the reasons for that departure.
I agree with the noble Lord, Lord Lester, that the absence of this kind of reasoning by the sub-committee was unfortunate. The Government have certainly 98 understood the fundamental importance of close and continuing co-ordination between governments and parliamentary delegations over elections to the court. It is in all our interests to achieve a balanced and high quality court. We can surely best achieve that in an atmosphere of co-operation and trust rather than one of competition and suspicion.
I emphasise two things. While the Government have no plans to press for changes to the procedure for the election of judges to the European Court of Human Rights, they are sensitive to the need for the assembly to be reliably advised on the qualities of the candidates put forward by governments. The Government would be happy to discuss with the United Kingdom parliamentary delegation to the Council of Europe any changes that it might be minded to propose in the selection procedure in advance of the next round of elections in three years' time. The Government will endeavour to ensure that this close co-ordination is achieved through consultation with the parliamentary delegation when the next UK election takes place.
As I have said, the Government are therefore sympathetic to the noble Lord's argument that it would have been better if the sub-committee had supported its recommendations, which were to depart from the views of government, with reasons for that departure. In that way the full assembly would have been better informed. I can assure the noble Baroness, Lady Anelay of St. Johns, that recommendations for judicial appointments in this country that come to me via the very wide consultation community and my officials are very detailed and fully reasoned and I am, therefore, fully informed. Reasons for appointing or not appointing are not given, but the point is that the decisions are taken by those who are fully informed. It is widely known in our country, however, that appointment is on merit only and those who succeed are those who are found to have best fulfilled the criteria for appointment.
I have noted the very limited measure of positive discrimination to which the noble Baroness has drawn attention in the European procedures that we are addressing. I shall repeat her quote:That in case of equal qualifications between candidates preference should be given to the female candidate".For our domestic judicial appointments system, the Government are opposed to positive discrimination and favour appointment exclusively on merit. Many women are winning through on merit. I find the notion of two candidates of precisely equal merit rather fanciful. I believe that people can always be distinguished on grounds of merit. Of course, in our system my officials are available to explain to individuals in general terms why they have failed to secure appointment and how they might strengthen their position in future applications. I add that in this country a lawyer's politics are fully irrelevant to the decision whether to elevate to our independent judiciary and that it is one of the high duties of the office that I occupy to uphold the independence of the judiciary. The noble Baroness, Lady Williams, made an important point when she reminded us that our traditions of judicial independence are by no means universal.
99 Finally, I respond to the three questions posed by the noble Baroness, Lady Anelay of St. Johns. First, I can assure her that government officials did not lobby on behalf of any of the candidates for election to the European Court of Human Rights. Officials did, however, make clear to officials of the secretariat and of other member states of the Council of Europe, that the Government continued to support the candidates in the order proposed, but that the selection process was for the Parliamentary Assembly. It is, of course, the duty of officials to communicate the views of Ministers in precisely this way.
Secondly, the noble Baroness asks me to agree that the lobbying campaign was unfortunate. I make no comment on any lobbying in the assembly. This was for the individuals concerned, and the Government were not involved.
100 Finally, the noble Baroness asks me to agree that the sub-committee carried out its work with due and proper diligence. The sub-committee was, of course, answerable not to governments, but to the Parliamentary Assembly of the Council of Europe. I rather think, therefore, that this is an issue on which I have no real standing to comment. That said, I can say this to the noble Lord, Lord Kirkhill, and to your Lordships: it appears to me as an outsider that the sub-committee did diligently the job that it was appointed to do. I have already made my comments on the desirability of it supporting its recommendations to the assembly with its reasons for departing from the recommendations of Her Majesty's Government.
§ House adjourned at a quarter before nine o'clock.