Lord Chancellor's Role (Hansard, 21 February 2001)

§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, let me say first that this Labour Party dinner was for lawyers, whom I understood to be known Labour Party members or supporters who had generally attended before. Lawyers know all the safeguards built into the legal appointments process, a system on which a former Commissioner for Public Appointments, Sir Leonard Peach, recently concluded: My assessment is that the procedures and their execution arc as good as any which I have seen in the Public Sector". None the less, in order to avoid any possible, however theoretical, perceived notion of a conflict of interest between the roles that a Lord Chancellor properly has under our constitution, I decided for the first time to establish a commission for judicial appointments which will scrutinise the whole system of judicial and QC appointments and its execution. The first commissioner will be appointed next month and there will be a team of deputy commissioners. The commissioner will have access to every piece of paper, every assessment, every opinion and every interview for every applicant. His report will be laid before Parliament alongside my annual report to Parliament on judicial appointments, which was another initiative taken by me. I do not believe that anyone who attended the dinner in question could conceivably have thought that a donation could have bought an appointments advantage.
The noble Lord, Lord McNally, is a well-known supporter of state funding for political parties. Without state funding parties have no alternative but to fundraise. Every Minister, from the Prime Minister down, engages in fundraising, as did our predecessors. as do Shadow Ministers. It is not the case that Lord Chancellors are not party political. They are appointed by the Prime Minister; they take the party Whip; they speak and vote for the Government in Parliament; they sit in Cabinet; and they campaign for their party. Fundraising, unless and until the rules are changed, is part and parcel of the party-political activities of Ministers and Shadow Ministers.

§ Lord McNally
My Lords, I thank the Lord Chancellor for that reply. I am sure that a number of his learned friends will want to probe him further on the legal aspects of his reply. Perhaps I may ask him two questions on the fundraising aspect. First, what precedent does the noble and learned Lord think his behaviour has set in terms of the relationship between ministerial responsibility and fundraising? Can the Secretary of State for Education and Employment write to deputy headmasters? Can the Minister of Agriculture, Fisheries and Food write to farmers? Can the Minister of Health write to junior doctors? There is a blurring by the behaviour of the Lord Chancellor of his responsibilities as a Minister and his responsibilities as a politician.
815 Secondly, the Lord Chancellor may have read in the Daily Telegraph this morning an extremely well-informed article attributed to one of the Lord Chancellor's friends, where it is said that he was led down this route by those rascals in Millbank. Did any of the Lord Chancellor's friends ever suggest that the best course of action for him today would be to come to this House and say that this was an error of judgment which he regrets and for which he apologises? If the noble Lord had done so he would have enhanced the respect for himself, his office and the Government. He missed the chance by not doing so.

§ The Lord Chancellor
My Lords, first, I have not read the piece in the Daily Telegraph.

§ Lord McNally
It sounds like he wrote it!

§ The Lord Chancellor
My Lords, the noble Lord says that it sounds as if I wrote it. I did not. I know nothing about it. If anyone who is a friend of mine was the source and if the account of the noble Lord is correct, I would be very inclined to say, "God, protect me from my friends".
I am simply saying that I do not believe that I have done anything wrong. Nor do I believe that I have broken any current rules. If I did, I would be the first to apologise. There is no real difference between party-political campaigning and fundraising because I believe that fundraising is an inherent part of party-political campaigning. We would be unrealistic not to recognise that.
A great deal has been said about the office of Lord Chancellor being non-party political. That is simply not true. At the great age of 79, the noble and learned Lord, Lord Hailsham, toured the country in the 1987 general election campaign. Lord Kilmuir was even more frequently on the campaign trail. In 1997, the noble and learned Lord, Lord Mackay of Clashfern, took a high political profile to speak out strongly against Scottish devolution. I take the view that, unless and until the rules are changed, a Lord Chancellor is no different from any other Cabinet Minister.
If a debate arose out of this to say that a rule should develop that a Lord Chancellor should be different from all other Ministers as regards fundraising, I would listen to such a debate with a very attentive ear. In fact, I could be quite hospitable to the idea that a Lord Chancellor should be excused from the burden of fundraising.

§ Lord Strathclyde
My Lords, would the noble and learned Lord the Lord Chancellor do it again?

§ The Lord Chancellor
My Lords, certainly, unless the rules are changed I would be willing to consider doing it again. Whether or not that would attract a furore of this kind would be a consideration that I should take into account because I believe that this furore is distracting the attention of the country from 816 the real issues facing it. When the noble Lord, Lord Strathclyde, asks would I do it again, he must ask himself what are the principled reasons for a Lord Chancellor being an exception to what applies to every other Minister.
Every other Minister is deeply involved in appointments processes. There are about 30,000 public appointments which are sought after, of which about 26,000 are direct ministerial appointments. If the proposition is that the Lord Chancellor is different, those who advance that proposition have to give reasons.

§ Lord Tomlinson
My Lords, will my noble and learned friend explain to the House with precision the protections that are built into the system of appointments to prevent politically motivated appointments?

§ The Lord Chancellor
My Lords, a vast range of safeguards are built in. Every appointment up to the level of circuit judge is the subject of open competition, interview with lay persons and assessments of individuals throughout the course of their professional lives. Those assessments are there in writing and every interview assessment is there in writing. Eventually, the appointment is considered by the civil servants, who then make written recommendations to the Lord Chancellor. That is how it has always been. Those are the procedures which Sir Leonard Peach said are "as good as any" that he had ever seen in the area of public appointments.
I have gone to great lengths, which I have already defined, to strengthen public confidence in this area by being about to appoint an independent commissioner for judicial appointments who will have access to every interview, every piece of paper, every meeting, and at a higher level. This commissioner will be entitled to sit in on the regular meetings that I have with the heads of division where we consider the really senior legal appointments—that is to say, High Court Bench and above—and also all silk applications.

§ Lord Howe of Aberavon
My Lords, does the Lord Chancellor not recognise that there is a distinction between the perfectly proper political campaigning undertaken by the predecessors whom he cited—the noble and learned Lord, Lord Hailsham, Lord Kilmuir, and the noble and learned Lord, Lord Mackay—and the process of fundraising? Does not the Lord Chancellor's manifest willingness now to consider favourably a rule proscribing that which has just taken place illustrate the way in which his predecessors have recognised that this is an area where they should be bound by the unwritten law? Instinctively and intuitively, they would have recognised the conflict between the process of fundraising and the process of political campaigning. Is it not regrettable that the noble and learned Lord has not done the same thing?

§ The Lord Chancellor
My Lords, I have no inside knowledge of the internal affairs of the Conservative Party, but I would be very surprised if Tory Lord Chancellors had not attended fundraising Conservative dinners. It would have been completely unobjectionable for them to have done so and they would have aided fundraising by their presence. The reality is that people come to these dinners to meet, to see, to hear and to talk to Ministers. Ministers' presence is a spur to fundraising. That is the reality.

§ Lord Goodhart
My Lords, as I understand it, the new commissioner will monitor the appointments system but he will have in himself no power of appointment. In 1992, in a pamphlet published by the Society of Labour Lawyers, the noble and learned Lord called for the establishment of a Ministry of Justice and for the selection of the judiciary by a judicial appointments commission. Why have the Government changed their mind? Do not the noble and learned Lord's present problems make the correctness of his original views even more obvious?

§ The Lord Chancellor
My Lords, I cannot think of a system of appointments that will be more exposed to public scrutiny and attract greater public confidence than the one which I have just described, with the oversight by an independent commissioner for judicial appointments. As the noble Lord knows well, and as I have said before, I have never excluded the possibility of a judicial appointments commission. It is a very controversial proposition. The noble Lord knows well that there are many who are really opposed to that proposition because of the dangers which it is said to pose to appointments on merit only as distinct from appointments which make compromises. The noble Lord is well aware of that argument. But I take this opportunity to say again that I have not closed my mind to this proposition. After the new commissioner for judicial appointments has presented his first annual report to Parliament, it will be time for us to sit back, to take stock and to see whether it is a sensible course to follow to go out to consultation on the possibility of an appointments commission in the full sense.

§ Baroness Crawley
My Lords, it would be—

§ Lord Tebbit
My Lords, perhaps I may—

Noble Lords
Order!

§ The Lord Privy Seal (Baroness Jay of Paddington)
My Lords, I think it is the turn of the Government Benches to ask a question.

§ Baroness Crawley
My Lords, it would be helpful to the House if my noble and learned friend could say whether he has received any complaints during his time in office about any lack of propriety in the legal appointments that he has made.

§ The Lord Chancellor
My Lords, none at all.