HL Deb 01 March 1999 vol 597 cc1440-56

Lord Patten rose to ask Her Majesty's Government what steps they intend to take to ensure greater openness in the appointment of the judiciary, particularly in the light of recent legislation increasing the constitutional role of the judiciary.

The noble Lord said: My Lords, I ask the Question standing in my name on the Order Paper because I believe that the way in which the judiciary are selected is in urgent need of modernisation. I do not ask the Question from the point of view of someone who perhaps is known as a raving radical. Nor do I have any interests to declare, as I have no legal qualification or occupation. Therefore, I hope that no one in your Lordships' House will think it impertinent for someone not learned in the law to introduce a debate about the way in which the judiciary are selected—though I suspect that I have caught some whiff of that feeling in the corridors of this place. However, I would maintain to your Lordships who may be sceptical about my locus, let alone my ability, to raise such issues that such are the revolutionary changes sweeping through the judiciary in the United Kingdom as a whole that it is of vital importance that they are urgently considered outside the judicial magic circle.

I have four reasons to put to your Lordships to explain why I am so uneasy about the way in which our judiciary are appointed in relation to their ever-growing powers. I then have four entirely I hope helpful and constructive suggestions to make as to how improvements might be made.

First, because of their ever-growing powers, we need greater openness about the way in which our judges, and in particular Lords of Appeal in Ordinary, are selected. Let us take the way in which judicial review has developed in this country. When I joined the then Administration for the first time as the most junior of junior Northern Ireland Office Ministers in 1981, judicial review was barely heard of so far as government decisions were concerned. As a government old lag hardened in the corridors of Whitehall and case hardened in the Committee rooms of another place, I do not happen to think that judicial review is bad. But its increasing use is altering the balance of powers in our constitutional arrangements.

Secondly, when the substantive provisions of the Human Rights Act come into force, we shall, in developing the common law compatibly with the rights contained in the European Convention on Human Rights, be facing a legal revolution in this country. This is because for the first time in our history our rights as subjects or citizens will be spelt out in law, leading to an ever greater burst of judicial activity and a further extension of judicial power.

The third reason for my concern is the magical mystery tour approach to constitutional change thus far adopted by Her Majesty's Government. Because of that approach, not knowing where we are going, we are left with a vacuum which will draw the judges inevitably more and more into arbitrating between the United Kingdom Parliament here in Westminster and perhaps the Scottish Parliament and the Welsh Assembly. That may not be the Government's intention, but arbitrating over a whole range of issues between the countries will increasingly become the role of the highest court in the land for the simple reason that there is no one else to do the job. Thus the Appellate Committee of your Lordships' House is at risk of becoming a de facto constitutional court.

The noble and learned Lord the Lord Chancellor told me on 3rd February of this year that he has no proposals at all to develop such a constitutional court. But it is about to develop in front of our eyes. Equally, the Lord Privy Seal told me on 1st February that the Government will not set up any mechanism to monitor the effects of constitutional change in this country. She said that they will not set up a permanent Royal Commission or any similar body to monitor and report on the effects of constitutional change upon the United Kingdom. Effectively, the members of the higher judiciary will have to arrogate more and more constitutional powers to themselves as we go further on the magical mystery tour of constitutional change that the Government are introducing.

Fourthly, greater openness is necessary because of the greater judicial activism that we see now. More and more judges arrogate to themselves jurisdiction over moral matters in line with how they, not Parliament, see international law developing. That may or may not be a good thing. Certainly, in the past, under common law, judges have always had the ability to avoid parliamentary influence. But that has rarely been a matter of public concern as regards constitutional matters because of the usually conservative—and I do not use that word in a political or pejorative sense—way in which powers are exercised and the personally cautious approach of the Law Lords and others which has ensured that the tide of change has flowed slowly and in an evolutionary way.

But I believe that we are in grave danger of having a group of people in this country who will become over-mighty citizens. We need more checks and balances to ensure that our ever more powerful judges are scrutinised more closely as their role grows.

We should start with how they are appointed. That is the best way to start. I do not approve of root and branch reform in that area but we should begin by understanding more about how our higher judiciary are appointed. I have four proposals to put before your Lordships in order to suggest how the modernisation of the process of selection of the judiciary might begin.

The first of these suggestions is that all posts at the highest levels need to be advertised in order to show openness to appointment to women as well as to men. Secondly, there should be an annually updated and mandatory register of interests that is publicly available for all Lords of Appeal in Ordinary, Heads of Divisions and Lords Justices of Appeal. It is now in the public interest to know more about our judicial masters. If that is not in the public interest, perhaps the noble and learned Lord the Lord Chancellor will be good enough to explain why not when he addresses us later on.

Thirdly, there should be a powerful lay element involving those drawn from outside the law helping with the selection of judges. At the moment, the way in which this Lord Chancellor and earlier Lord Chancellors have conducted the appointments procedure through the consultation process with senior members of the judiciary is no longer fit for the purpose. Indeed, it may well remind some of your Lordships of the way in which the leaders of my own political Conservative Party were selected until 1964; that is, by what was known as the magic circle approach to appointments.

I recognise of course that lay people are already involved in the shortlisting and interviewing of applicants for judicial office below High Court level, which was a welcome introduction by my noble and learned friend Lord Mackay of Clashfern. I believe that that should be extended urgently.

Fourthly and lastly, so important is the role of our higher judiciary becoming and so powerful are its members growing that there should be public hearings before a Select Committee of both Houses of Parliament before any man or woman is appointed to become a Lord of Appeal in Ordinary. I have friends in the law. Indeed, one or two members of the higher judiciary have even visited my house, though I shall not ruin their careers by naming them. But many in the judiciary seem to be in an absolute state of denial as regards the fact that, of necessity—it is not their fault—the members of the higher judiciary have become more political. Yet, as things stand, their role in both promoting and monitoring constitutional change will be absolutely unfettered.

I make no comment on the lack of separation of powers which exists, uniquely in this place, other than to remind your Lordships that, when our Government published their White Paper on the future of the House of Lords on 21st January, they admitted that the Law Lords' membership of this House was an anomaly. In the long term, I expect that we shall no longer have the Lords of Appeal in Ordinary sitting in this Chamber: sitting both as members of our highest court and as legislators; not only administering the law but making it; deciding cases and voting on legislation. That lack of impartiality is automatically built into their role through no fault of their own but I believe that it flies in the face of Article 6 of the European Convention on Human Rights, which states that people are entitled to an independent and totally impartial hearing. Their very judicial activism has brought into focus their position as Members of this House and has hastened their ultimate demise.

I say in conclusion that I do not for one moment criticise the hard work, legal expertise or personal integrity of any Lord of Appeal in Ordinary, past or present. I merely say that the world has changed and that, without urgent attention, their constitutional role will become uniquely strong, unfettered and unscrutinised anywhere in the world. We should not allow that to happen and we should not allow the checks and balances in our arrangements to become so distorted.

7.45 p.m.

Lord Borrie

My Lords, the noble Lord, Lord Patten, has done the House a service by raising this Question for us this evening. I am well aware, as is the noble Lord, that some light has been shed upon the system of judicial appointments in recent years. I exemplify that by the Lord Chancellor's Department's evidence to the Home Affairs Select Committee of the House of Commons in 1995. Dr. Robert Stevens, a Master of Pembroke College, Oxford, wrote a book five years ago entitled The Independence of the Judiciary which included the fruits of research into the files of the Lord Chancellor's Department, which disclosed the fascinating and blunt comments of successive Permanent Secretaries and Lord Chancellors on the merits and demerits of various candidates for high judicial office. Sadly, the 30-year rule prevented Dr. Stevens from dealing with matters more recently than 1971.

The only Members of this House who really know how the system works are the present Lord Chancellor and any former Lord Chancellors. Nevertheless, despite having some concerns about the lack of transparency in the present system, I also have doubts about changing to a system which is sometimes referred to as a system whereby there would he an independent judicial commission either making the appointments or being the key significant advisory body for the Lord Chancellor. I should be concerned in relation to such a change about the inevitable diffusion of responsibility for appointments.

Then there is the question of how such a body would itself be appointed and what sort of people should be on it. To my mind, the key question for us all is whether a change would be likely to bring about better appointments. A committee or commission of diverse interests may well tend to go in most cases for the compromise candidate—the person who has the least opposition, the "safe pair of hands".

In debate in this House on 17th February, the noble Lord, Lord Kingsland, suggested that a candidate for judicial appointment selected by the Lord Chancellor should be interviewed by a parliamentary committee. The noble Lord, Lord Patten, seems to have a similar idea. I do not know whether that is becoming agreed Tory party policy or whether it is a piece of policy being developed, as it were, on the hoof by the noble Lord, Lord Kingsland. Perhaps we shall hear more about that this evening.

I suggest that informal, confidential conversations and contacts with a lay element, perhaps, as the noble Lord, Lord Patten. suggests, may reveal much more information about judicial abilities and qualities than some more formal process or indeed, a process which involves political point-scoring in which Members of the House of Commons—as the noble Lord, Lord Patten, may recall from his days there—may indulge. The most important questions about judicial appointments concern the qualities we need in our judges and whether we should broaden the still narrow base from which they are drawn. The great American judge, Felix Frankfurter, said that a good judge needs to have three qualities, each of which is disinterestedness.

If I can be slightly less laconic than the late judge, perhaps I may elaborate and say that some qualities are universally required of all judges and some are particularly desirable for judges sitting in specific kinds of courts or tribunals. Those universal qualities, I suggest, include integrity, independence, compassion, patience, humility and a strength of personality that makes him or her capable of withstanding pressures of any sort, from anywhere, including government.

It has never been obvious to me or apparently to such observers as David Pannick, QC, who writes regularly in The Times or Sir Louis Blom-Cooper, QC, as to why a practising barrister who will have spent half a lifetime in fierce partisanship in the courts is deemed to have the best qualifications for being an impartial judge. As we know, the choice has been widened somewhat recently to include solicitors, but so far the Lord Chancellor's office has been extremely cautious, no doubt because it is considered that practice in the courts is virtually demanded and not many solicitors fulfil that requirement.

Can we broaden the base from which judges of various levels are chosen to include chairmen of administrative tribunals, academic lawyers and lawyers from industry and commerce so that a wider choice is available? Let such lawyers be given part-time judicial appointments so that they can experience judicial work and have their performance monitored. After all, that is the typical route of judicial work for practising barristers. I believe that it could be made more widely available to others.

7.51 p.m.

Lord Neill of Bladen

My Lords, I too am grateful to the noble Lord, Lord Patten, for raising this issue. But I am a sceptic, both as to the perceived mischief and as to the suggested remedy. We take too narrow a historical view. If we look back across the centuries we will see that the law and judges have been frequently involved in cases of the highest constitutional importance. I have only six minutes at my disposal and therefore will not go into the legal history, but let me mention some salient cases with which we will all be familiar.

The first is the case of the five knights in the time of King Charles. They were imprisoned for not paying an illegal demand for a forced loan. The response to habeas corpus was, "The King has imprisoned them". A craven court had that highly political decision to make and decided to leave the knights languishing in gaol. A little later, at the beginning of the 18th century, we come to Ashby v. White, a tremendously important constitutional case where it was held that a person who was denied the right to vote in a parliamentary election had a right of action in damages. That led to rioting in the streets of London. Queen Anne suspended both Houses and, perhaps more worrying for the legal profession, officers were sent from the other place to arrest a barrister in the Temple for having appeared on the wrong side. He was well prepared with sheets and ropes and, while they were knocking down the front door, he climbed out of the window at the back. That case led to days of rioting.

Later in the century we had Somerset's case about the slave—a tremendously important constitutional case. In the 19th century, take your pick: Stockdale v. Hansard and the Taff Vale trade union cases. In the 20th century there are too many cases to choose. Constitutional issues have arisen frequently. We should not lose sight of the Privy Council. It has been deciding cases of high constitutional importance down the years. For example, in 1930 Lord Atkin was responsible for giving the leading advice in a series of important Canadian appeals on its constitution; similarly Australia. Since the war we have moulded constitutions for Commonwealth countries and those have given rise to many important cases which have come to the Privy Council. So the highest judges have been regularly dealing with cases of high constitutional importance.

The noble Lord, Lord Patten, is correct in referring to judicial review. Of course there have been a torrent of cases of the highest importance. But the judges have become used to dealing with this jurisdiction and, whereas in the old days, it used to be said theoretically that one might set aside a decision of a Minister on the ground that no reasonable Minister could reach such a decision, today—not every day, but frequently—judges set aside Ministers' decisions on precisely those grounds, and the decisions of lesser tribunals and other bodies.

So there is a great experience among the judges in handling difficult cases involving conflict between the Executive and the rights of the citizen. Indeed, I would claim that the judges had stood between the Executive and the rights of the citizen and held the hand of the Executive when these were applied in an oppressive manner in many instances. A famous example crossing the centuries is the attitude of the courts to the so-called "ouster" clause. That is a provision in a Bill which says that no issue arising on such-and-such a question can ever be raised in any court of law. Judges with infinite skill have found methods of interpretation to completely disarm the exercise of such ouster clauses, again, upholding the liberty of the subject.

I believe that there is an exaggeration in saying that we are dealing with a novel problem. We do not meet people going round saying that judges have been mishandling cases of judicial review; on the contrary, we hear praise for the independence and courage of the judiciary in performing their traditional role.

As to the supposed remedy, the noble Lord suggested four. One, for example, was to advertise all the appointments. There would not be much harm in that if we said that such-and-such a Law Lord is due to retire in two years' time. We could certainly do that. But the register of interests is an entirely separate point and has nothing to do with the appointment of the judiciary. I have views on that and believe that there is an anomaly about the register of interests. I do not understand, if one is taking that point, why it is confined simply to the judicial Members of the House of Lords and not to other courts. I see no reason why we should not know the interests of a much lesser judge than somebody sitting in the House of Lords. How that would be dealt with would involve difficulty in maintaining a register.

I suggest that we would not gain by what is essentially the noble Lord's key proposal; that is, that we have a judicial appointments board manned by the great and the good with a strong lay element. Worst of all, in my view, is the public hearing element to that proposal. What are the unfortunate candidates going to be asked? If they had any sense they would never have written a word in any legal article so that they would have no recorded opinion of any sort. Will they be asked questions of law? How will it be decided? For instance, before the decision relating to life support machines had been decided, they may have been asked, "Would you be in favour of turning off a life support machine in certain circumstances?". The questions could involve issues of abortion or any other controversial issue of the day. Will a potential judge be asked to give an opinion?

If the candidate had any sense he would say, "If this came before me judicially, I would want to consider the arguments on both sides. Sitting here, I have no opinion". But of course that would not do, so presumably he would have to give an opinion. I suppose a candidate could be failed for expressing the wrong opinion. That is a disastrous way of appointing the judiciary. We can carry openness to its full length—I believe that openness is one of the great seven principles of public life; I proclaim that—but there must be limits to it. The limit comes when we try to interrogate potential judges, possibly throw open their record, their CV and the references that have been submitted about them. I am therefore a sceptic on both counts.

7.58 p.m.

Lord Mackay of Drumadoon

My Lords, my noble friend Lord Patten is to be congratulated on asking the Question which gives rise to this short debate at a time when the judiciary of the United Kingdom is preparing to take up its new responsibilities under the devolution legislation. I know that members of the judiciary are looking forward to those new responsibilities and are preparing thoroughly for them. They are responsibilities which will involve ensuring that the devolved institutions respect convention rights as those rights have been defined under the Human Rights Act 1998.

The speech of my noble friend Lord Patten was primarily directed to the appointment of members of the judiciary in England and Wales and of Lords of Appeal in Ordinary. That is entirely understandable in view of the fact that it falls to the noble and learned Lord the Lord Chancellor to reply to this short debate.

Perhaps I may say, at the outset, that I agree with a great deal of what my noble friend had to say. However, like the noble Lord, Lord Borrie, and the noble and learned Lord, Lord Neill, I share some reservations about the role of public hearings in the appointment of judges. Although I had the benefit of hearing the speech made by my noble friend Lord Kingsland, like a number of other Members of your Lordships' House I remain to be persuaded.

Notwithstanding the coming into force of the Government of Wales Act and the Northern Ireland legislation, the appointment of judges who will sit in those parts of the United Kingdom will remain the responsibility of the United Kingdom Government. By contrast, after devolution, the appointment of members of the Scottish judiciary—with two important exceptions, the Lord President and the Lord Justice Clerk—will be matters for the First Minister who will, of course, be answerable to the Scottish Parliament.

The provisions of the Scotland Act, as enacted, will ensure that to some extent different procedures are followed than have been applied up until now. Notwithstanding the imminence of devolution, it would be wrong to comment in detail during the course of this debate on what form procedures in Scotland might follow. Those are clearly matters for the Scottish Parliament, which I have no doubt will follow the principle of openness which lies behind my noble friend's Unstarred Question.

Occasionally in debates on legal matters in your Lordships' House, I have been guilty of suggesting that the English legal system would do well to follow the Scottish example. In my own defence, I might say that I suspect I am not the only Member of your Lordships' House, qualified in the law of Scotland, who has sinned in that way. I seek forgiveness for past failings. However, the noble and learned Lord the Lord Chancellor will be happy to learn that I make no such suggestion tonight as regards the appointment of judges.

The noble Lord, Lord Borrie, mentioned the report of the Select Committee on Home Affairs of another place which was published back in 1995. As he correctly stated, the Lord Chancellor's Department submitted very detailed evidence to that committee which was published when it came to report to another place. From a reading of that report, and also from a briefing which I received from officials in the Lord Chancellor's Department when I was Lord Advocate, it is quite clear to me that a considerable amount of care and effort is taken by such officials in the gathering together, vouching and assessing of information upon which the Lord Chancellor, in due course, makes appointments at various levels to the judiciary.

I have seen some of the forms used in that exercise. Quite frankly, I have been most impressed by the rigour with which detailed information is sought from a variety of sources, cross-checked and analysed. I am aware also that the Lord Chancellor's Department publishes leaflets that explain the qualities looked for when appointments are made at different levels of the judiciary and how those appointments are made. In publishing such leaflets, it seems to me that the Lord Chancellor's Department has set a good example. I, for my part, rather regret that in the time when I held office as Lord Advocate, I was unable to persuade colleagues and officials to do likewise.

There is, however, one suggestion I would make which might address one aspect of the public concern which lies behind my noble friend's Unstarred Question. What interested members of the public may currently lack is ready access to factual knowledge as to who the members of the judiciary are; what qualifications they hold; details of the career they followed prior to appointment; details of their areas of particular expertise; and details of their involvement in other aspects of public life.

If they had such information, I believe it would not only serve to inform members of the public who the judges are, but also reassure them that the judiciary is constituted of individuals of the necessary education, ability and experience, drawn from a wide variety of backgrounds and able to discharge the increasingly important role that the judiciary has as the Government's constitutional legislation is brought into force.

As the noble and learned Lord the Lord Chancellor may well be aware, last week the Scottish courts service launched its own website on the Internet. The objectives of doing so include providing members of the public with information about the role of the courts and the decisions of various judges. In particular, it carries details of who all the High Court judges are, together with some detail of their qualifications and experience. I know that in this instance the Scottish legal system is following the example of England. As I understand it, the court service in England and Wales has had a website for some time. I endeavoured to search the website; I can find no information about the judiciary. Perhaps I may put forward a suggestion. If the website contained details of procedures currently followed, the qualities sought, and the rigorous steps taken to collect information and, more importantly, details of who the judiciary are, that might in some way, albeit indirectly, seek to meet the desire on the part of many Members of Parliament, lawyers and members of the public for greater openness in the appointment of the judiciary.

8.5 p.m.

Lord Clinton-Davis

My Lords, I have an interest to declare at once. In 1984 I was appointed an assistant recorder. However, as I went to Brussels as a commissioner instead, I never sat as an assistant recorder. That, I am sure, was to the benefit of everybody concerned.

There is one common theme here: we all praise the noble Lord, Lord Patten, for introducing the Unstarred Question. However, that is as far as the praise seems to go. I found that the criticism, or the indictment, he levelled was not made out. It was short of factual information and evidence. As the noble and learned Lord, Lord Neill, pointed out, most of the remedies were, I believe, seriously deficient.

However, most of all the noble Lord seems not to have noticed the changes introduced by my noble and learned friend the Lord Chancellor and the further indications of change that he has already intimated. They seem to have passed him by. That is regrettable. However, I believe it is as well to say that my noble and learned friend has made it clear that the major criterion affecting his judgment about this issue is that appointments should be made on merit. Yes, there needs to be transparency, flexibility and efficiency in relation to the whole operation.

Under his tutelage, applications for appointment to the High Court Bench are being encouraged, wheras in the previous system invitation alone seemed to be the way in which this was done. Those who have undertaken career breaks for family reasons will be enabled to undertake part-time sittings. That is a radical and important change. Senior judges mentoring junior colleagues is something which he has also proposed. That will all be part and parcel of the new arrangements. He is proposing that there should be an annual report to Parliament about how the whole system of judicial appointments is operating.

There is, of course, the question of an ombudsman to investigate complaints of discrimination in terms of appointments of judges. My own hope is that that will happen. I shall listen with interest to what my noble and learned friend has to say about that. Perhaps he will also inform the House about his present thinking on a judicial appointments committee.

I believe that this Government have made an excellent start, which mirrors the thoughts of my noble and learned friend, who, along with my noble and learned friend Lord Archer and myself, is joint President of the Society of Labour Lawyers. He has been saying many of these things for years and writing about them. Now he has the opportunity to put them in place. Above all, he has set his face against discrimination. It is appropriate to talk about that in the context of the events of last week. Discrimination in the whole process of judicial appointments would be wholly intolerable.

My noble and learned friend has also acted against ageism. Assistant recorders can now be appointed up to the age of 53. The maximum age of appointment is no longer 50. Magistrates may be appointed up to the age of 65 to serve for a term. Reasons for non-selection are to be disclosed to the person affected, where requested.

My noble and learned friend cannot do everything himself. There is also a duty on those who encourage people to enter the profession to ensure that there is an absence of discrimination. The professions bear a big responsibility. One has to ask—indeed, my noble and learned friend has himself raised this—why there are no Asian or black High Court judges at present. I am confident that my noble and learned friend will investigate this issue. Indeed, my right honourable friend had something to say about that recently.

It is important that the youngsters who enter the legal profession should feel that they are not in any sense discriminated against, particularly if they come from the ethnic community or are women. It is important that they should have confidence in the profession because it is from them that the future judges will be selected. I believe that we have made considerable strides in relation to this. I am sure that there are some warts, but in the main the professions have acted responsibly.

Perhaps I may say a few words about the "magic circle" or "secret soundings". I really do not think that it is as malign a process as the noble Lord suggested. In fact, it is quite a sophisticated way of helping to measure suitability for judicial appointment. Of course, there is always the risk that the assessors could be biased, but, equally, my noble and learned friend is demanding a balanced assessment and is putting in place mechanisms to suppress any signs of discrimination in that regard. Consultation is not to be the sole consideration and every encouragement is to be given to people to apply to be considered as judges.

In conclusion, I think that my noble and learned friend has demonstrated his commitment on this issue. I say that although I have not always admired everything that he has done and have been somewhat critical of a certain Bill now progressing through your Lordships' House. However, when one considers the situation that he inherited and that which he is seeking to develop, one sees that my noble and learned friend has every reason to be supported by this House, the legal profession and the public at large.

8.12 p.m.

Lord Thomas of Gresford

My Lords, I too am grateful to the noble Lord, Lord Patten, for raising this issue. He is right to call for greater openness in the appointment of the judiciary. I too declare an interest as a recorder and a deputy High Court judge.

I believe that the power of appointment should be taken from the Lord Chancellor while he retains his political role and should be vested in a commission comprising judicial figures, members of the Bar and of the solicitors' profession, and members of the public. That is what we left behind us in Hong Kong. That was the system that applied there under colonial rule and it has continued. I am reliably informed that the judicial appointments now made in Hong Kong are completely free of political influence in a highly sensitive situation. I am convinced that that is the way in which we should move forward in this country also.

The noble Lord, Lord Patten, referred to "judicial activism". In using that phrase, he echoed the views expressed fulsomely by Judge Robert Bork, the former Solicitor General of the United States, whose nomination by President Reagan for the Supreme Court was blocked by the Senate because of his conservative views. In the "First Things" symposium in November 1996, entitled "The End of Democracy? The Judicial Usurpation of Politics", Judge Bork suggested that, the most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control". His colleague, Charles Colson, said that the blame should be squarely placed on the, systematic usurpation of ultimate political power by the American judiciary". The fear of judicial activism has American, right-wing conservative roots.

The noble Lord, Lord Patten, referred to moral matters. The matters which particularly exercise right-wing conservative judges in the United States are decisions made by the federal courts and by the Supreme Court on subjects such as abortion, euthanasia, homosexuality and assisted suicide. Indeed, Ed Meese, the Attorney General under President Reagan. wrote recently: Judicial activism has harmed virtually every aspect of public policy in America". It was his view that, Leftist politicians have accomplished much of their agenda in the past thirty years not through use of such democratic means as the electoral process or legislation, but instead through the use of the federal courts". His recommendation—again, this was echoed by the noble Lord, Lord Patten—was, The Senate should use its confirmation authority to block the appointment of activist judges. This confirmation process in recent years has been relatively perfunctory. The Senate Judicial Committee should closely question each nominee for the federal bench to ascertain the candidate's understanding of the proper role of the judiciary". Similarly, the House Majority Whip, Mr. DeLay, who is, of course, a Republican representative from Texas, told the Washington Times in November 1997: as part of our conservative efforts against judicial activism, we are going after judges". That claim was responded to by Mr. Lee Cooper, the president of the American Bar Association, who said that, any federal judge threatened with this sort of partisan bashing might be tempted to act on matters not based on the applicable law; rather the standard might become the prevailing winds of political popularity. This is not the justice system the American people want or deserve. That is a partisan political circus". Cries about judicial activism derive from right-wing judges in America and from academic writers who see a clash between what they believe to be the purposes of the founding fathers of the written constitution at the end of the 18th century and the way in which in modern conditions the judges of the federal courts interpret those provisions.

This country has a completely different judicial system. The noble Lord, Lord Patten, referred to judicial review. There is a misconception here: in judicial review proceedings, it is not the job of the judge to second-guess the Minister nor to take the decision which has been entrusted by Parliament to the Minister. In our system, judicial review curbs abuses by the Government and by public officials by using the power to declare the acts of public officials contrary to natural justice, ultra vires or completely unreasonable. The court's function is also to protect the politically powerless and to stand up for minority rights. The noble and learned Lord, Lord Neill of Bladen, emphasised that point and I agree entirely with him. The function of judicial review is not to supplant government decisions, but to control them in the interests of minorities. That point has to be understood.

I turn now to the implementation of the European Convention on Human Rights. Under the Human Rights Act, which has now come into force, we have not given the courts the power to strike down legislation that is incompatible with the covenant; we have given the courts the power to make findings which can bring the matter quickly back before Parliament for further consideration.

In relation to human rights, one should bear in mind that the whole purpose of a covenant of this kind and of the ICCPR (International Covenant on Civil and Political Rights) is to depoliticise fundamental rights. I quote the words of Supreme Court Justice Robert Jackson in 1943 in the case of West Virginia Board of Education v. Barnette, when he said: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections". So the whole purpose of the covenant is to take it out of the political arena.

Baroness Farrington of Ribbleton

My Lords, I remind the noble Lord, with respect, that he is now two minutes over time.

Lord Thomas of Gresford

I am obliged. Finally, I should like to refer to the proposed role of the Judicial Committee of the Privy Council in interpreting the constitutions of the Scottish Parliament and the Welsh Assembly. I do not see political considerations coming into the matter; it is well within the compass of that judicial committee.

8.21 p.m.

Lord Kingsland

My Lords, with the noble Baroness in mind and being aware that I made a speech on a similar topic 10 days ago, I shall be very brief.

I congratulate the noble Lord, Lord Patten, on introducing this debate. I do not think that he intended in any way to criticise the noble and learned Lord the Lord Chancellor; I think rather that he was probing and asking the noble and learned Lord for his reaction to the quite dramatic constitutional changes that the Government have introduced over the past 18 months and whether he felt some changes were necessary to maintain the legitimacy and reputation of the judiciary.

I listened with great care to the excellent speech of the noble and learned Lord, Lord Neill, and I entirely agree with what he said about the decisions made by our judges down the centuries. Even in recent years, with the increase in the number of judicial review decisions, our judges have still retained their legitimacy by making sure that those decisions are couched in the language of interpreting the will of Parliament.

Now, things may change—because of two measures that the Government have introduced. The first is the incorporation of the European Convention on Human Rights and the second is the devolution of power to the Scottish Parliament. In the case of the European convention, the balance of power between the judiciary and the legislature has changed dramatically. The judges can now range over all our statute law, analyse it in the light of the convention and, if they find an incompatibility, declare it. Once that incompatibility is declared, Parliament is obliged to legislate. Hence the change in balance of power between these two crucial arms of our constitution. Judges can no longer disguise what they say in the language of the intention of Parliament; it will now be their decision.

Is there not at least a danger that the judges might be seen by the public as overturning the decisions of elected politicians and therefore be perceived in the same way as elected politicians? I hope that that will not happen and that the noble and learned Lord the Lord Chancellor is right in what he said 10 days ago. He felt that no change whatsoever was necessary in his approach to the appointment of the judiciary. So be it. I hope that he is right. I do not share his confidence. I trust that he will at least reflect on the implications of the incorporation of the convention in the way that I have explained.

In the same way, the judicial branch, through the Judicial Committee of the Privy Council, will have to make decisions about the validity of Acts of Parliament passed by the Scottish legislature. What will be the political implications of those Acts being struck down? Perhaps it will be treated by the electorate of Scotland in exactly the same way as our own electorate reacts to a judicial review decision of a United Kingdom court; but, then again, perhaps not.

Having regard to the dramatic constitutional changes that the Government have introduced over the last 18 months, ought we not at least to reflect on the implications for the judges who now bear such a heavy constitutional burden for our country, a burden they have never been asked to bear before?

I do not entirely agree with every suggestion made by my noble friend Lord Patten. For example, I take the view that the selection of judges should remain in the hands of the noble and learned Lord the Lord Chancellor. In response to what the noble Lord, Lord Desai, said 10 days ago, I suggested that some public hearing might form part of the selection of the members of the highest court in our land—not that I think Parliament ought to be able to decide the judges' appointment, but there should be some public airing. After all, the noble and learned Lords who sit on the Judicial Committee of your Lordships' House are allowed to speak in it freely; so why should there be such a strong objection to their answering questions posed by your Lordships' House in the course of the appointment procedure? However, I have noted that many noble Lords have been sceptical about that matter and I readily accept that there may be some other method which would be preferable.

The essential question for the noble and learned Lord to consider is whether or not the dramatic change in the powers of the judiciary ought to make him ask pertinent questions about whether the present system is sufficient to ensure their legitimacy into the future.

8.26 p.m.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, I too am grateful to the noble Lord, Lord Patten, for initiating this evening's debate, but I did note the point, well made by the noble Lord, Lord Borrie, as to whether this new policy was being made on the hoof. There is a close link between the operation—and the integrity—of the judicial appointments system and the independence of the judiciary. The noble and learned Lord, Lord Bingham, in his 1996 inaugural Judicial Studies Board lecture on the independence of the judiciary, said: The key to the successful making of appointments must, I would suggest, lie in an assumption shared by appointer, appointee and the public at large that those appointed should be capable of discharging their judicial duties, so far as humanly possible, with impartiality. Impartiality and independence may not, even in this context, be synonyms, but there is a very close blood-tie between them". I agree that judicial impartiality is linked to, though slightly different from, the concept of judicial independence. One of the major duties of my office is to ensure the maintenance of judicial independence. The two pillars of our system are judicial independence from any executive or other interference and the assurance that the judges are impartial in their own independent sphere.

Judicial impartiality requires the judges themselves to put their obligation of fidelity to law and compliance with their judicial oath above personal preference. Some claimed in the late 1970s that the Court of Appeal had been partial in a long line of trade union cases. The most authoritative insistence on judicial impartiality came from Lord Diplock in Duport v. Sirs in 1980. He insisted that it was the judges' duty to apply the statutes, however unpalatable and whatever their own perception of where the public interest lay. Just as they are entitled to independence in their own sphere, so the public must be able to take their impartiality for granted. I believe the standing of the judiciary today is such that the public does have complete confidence in its impartiality.

In this debate it is important to distinguish between two quite different propositions. The first, which has not been articulated during the debate, is that we should never have had a Human Rights Act because it will politicise our judiciary. The second is that now that we have a Human Rights Act we must have a different method of appointing the judiciary. The first proposition is, I believe, the position of the noble Lord, Lord Waddington—he is not in his place this evening—who has tabled a starred Question for Wednesday on the subject. The second, I rather think, is the position of the noble Lord, Lord Patten. I am persuaded by neither.

The first proposition is simply an attempt to renew a battle that is over. Parliament has legislated for the Human Rights Act. Nor is the second proposition sound. I see no reason why adjudicating on legislation that might be called "constitutional"—I have to say that I find the expression very imprecise—should require any change to the way that judges are appointed. The decisions that judges have made in their own independent sphere across the century have frequently been the judicial component in much wider political controversies. I do not see the development of judicial review, of the Human Rights Act or of the devolution settlement as marking any sea change in the nature of judicial decision-making.

Under the Human Rights Act, the principle of parliamentary sovereignty is emphatically retained. The courts cannot strike down an Act of Parliament as incompatible with the convention. There will be very rare cases where they will declare an Act to be incompatible, but then it is for Parliament to determine what change to the statute is to be made. Under the devolution legislation the Judicial Committee of the Privy Council—not your Lordships' House in its judicial capacity—will have to determine vires issues affecting, for example, the Scottish Parliament, but that is nothing new in principle. The Judicial Committee has a long history as a constitutional Court of Appeal from the Commonwealth, to which the noble and learned Lord, Lord Neill of Bladen, referred, and vires issues of this kind are food and drink to the committee. So it is important not to get all of this out of proportion.

I repeat what I said in your Lordships' House on 17th February in the debate on the separation of powers, mentioned by the noble Lord, Lord Kingsland, and initiated by the noble Lord, Lord Lester of Herne Hill: Some who are critics of the Human Rights Act argue that it will have a tendency to politicise our higher judiciary. It is true that the Human Rights Act, when implemented, will throw up cases which could be described as politically controversial. But the law is no stranger to that over the centuries. Think of the landmark cases in civil liberties", to which the noble and learned Lord, Lord Neill of Bladen, referred. I continued: Think of the development of the law in relation to trade unions and the development by Parliament of immunities for industrial action which were then interpreted by the judges in controversial ways. Think of Liversidge and Anderson in 1942, the Regulation I8B case, and Lord Atkin's historic dissent."— indeed, there was an unholy row about that at the time. I went on to say: Think of the development of judicial review and of natural justice. Think of Brind, which excluded certain politicians from media appearances but allowed actors to stand in. Think of the cases about homosexuality in the Armed Forces. Think about whether the life support machine should he turned off. Think of every controversial decision in the criminal law".—[Official Report, 17/2/99; col. 735.] The courts have never been far away from controversy. I firmly believe that the Human Rights Act may see a change in degree, but not in kind.

I turn now to judicial appointments. I appoint to judicial office—or, in the case of more senior appointments, recommend for appointment—only those who meet the statutory qualifications for the office concerned. Subject to those statutory requirements, I make appointments strictly on merit, as did my predecessors. My policy is to appoint, or recommend for appointment, those candidates who satisfy the statutory qualifications and who, in my opinion, best meet the criteria for appointment. This is without regard to factors such as gender, ethnic origin, marital status or disability. The politics of any individual is absolutely irrelevant. I do not know, and would not contemplate inquiring, about the politics of any applicant for judicial office. I am sure that my noble and learned predecessors would say the same.

I believe strongly in equal opportunities. Everyone should be given an equal opportunity to fulfil his or her personal potential. Negative discrimination on the grounds of gender, race, religion, sexual orientation, class or any other discriminatory factor should never be tolerated. But, as I have said before, I am resolutely opposed to any proposition—and we have heard it tonight—that our senior judiciary, prior to appointment, should be subject to public hearings, to subject their judicial track records or attitudes to appraisal in terms of changing fashions for political correctness. I do not think that our higher courts should be sculpted to conform to some notion of social, political, gender, or any other balance. So I fundamentally disagree with the noble Lord, Lord Patten, that there should be public hearings before a Select Committee of both Houses of Parliament to approve the appointment or to investigate the attitudes of independent and impartial lawyers who might be appointed Law Lords. I entirely agree with the noble and learned Lord, Lord Neill of Bladen, on that issue.

Next, I normally appoint candidates to full-time office only after they have served part time for long enough to prove their competence and suitability. When considering the merits of candidates for appointment, I consider the independent assessments of as many members of the serving judiciary and the legal profession as possible. The consultation community is very wide. This is one of the areas of my department's work which is most thoroughly researched. I welcome the remarks of the noble and learned Lord, Lord Mackay of Drumadoon, in that respect. It would be difficult to conceive of a fuller system of peer appraisal. At present, I am considering this year's Silk applications. I have no less than 4,600 comments on the merits of individual applicants to consider. Last year 511 applied and 60 succeeded. This year 553 have applied. It is a highly competitive process in a merit-based system.

I cannot change the world overnight, but there are encouraging signs that women and ethnic minority practitioners are now coming forward in greater numbers. Without prejudice to the overriding principle of appointment strictly on merit, I hope to be able to appoint many more women and ethnic minority practitioners to judicial office in the coming years. Last year I was able to recommend for Silk 10 women and four applicants from an ethnic minority background. These figures of successful applicants represent over 20 per cent. of the applicants in each category. In December 1994, 7.6 per cent. of the main tiers of the judiciary were women. The figure is now over 9 per cent; and the picture is changing.

We have had a short but good debate on the initiative of the noble Lord, Lord Patten, on a subject which has become somewhat topical. I am sure that the debate will prove to be a source for opinion which we will consult in the future because of the quality of your Lordships' contributions this evening.