Constitutional Reform

HL Deb 14 July 2003 vol 651 cc630-44

3.12 p.m.

The Lord Chancellor

My Lords, with the leave of the House, I should like to make a Statement on constitutional reform. We all recognise the importance of our judiciary and our legal system to the security and confidence of our communities. They deal with crime, anti-social behaviour, family and civil disputes and through the tribunal system a whole range of subjects that affect daily lives.

We currently have judges of complete independence, probity, and very high ability. They are admired the world over. We need to build on that to ensure that our judges and our legal system are able to meet the challenges of the 21st century.

They must continue to be independent—of the executive, and the legislature. They must be able to connect with, and reflect our society, and they must be of the highest quality. We must recognise that improvements should occur when confidence is high.

Currently we have a system where all the judiciary—and I include in that magistrates, and tribunal members—are appointed mainly by, or on the recommendation of, one Cabinet Minister, where until the 12th June that Cabinet Minister also sat as a judge in the highest court in the land, and where before someone becomes a judge in our highest court of appeal, he is first made a member of the legislature; namely, this House. The efforts of my predecessors, particularly my noble and learned friend Lord Irvine of Lairg, have ensured that quality and probity have been maintained. But now we need arrangements which embed existing independence in a way which does not depend on one Minister, and which ensures that we have not just a quality judiciary, not just an independent judiciary, but also a diverse one that reflects our community. There has never been a woman appointed to sit in our final court of appeal; there has never been a black or minority ethnic judge appointed to the High Court in England and Wales.

We must implement change in a way that carries the confidence of the community, including the legal and judicial community. That means we must consult widely and fully before deciding the detail of our changes.

Today, I am publishing three consultation papers, the first on a supreme court for the United Kingdom, the second on an independent judicial appointments commission for England and Wales, and the third on the future of QCs.

I will deal first with the proposals on a new supreme court. We propose that the Appellate Committee of the House of Lords will cease to exist as the United Kingdom's highest court of appeal, and that the present Lords of Appeal in Ordinary instead form a new separate supreme court. While they are members of that court, they will not sit and vote in the House. The Government propose to transfer the whole of the present jurisdiction of the Appellate Committee to the new supreme court.

The time has come to take the final court of appeal out of the legislature.

The Government also propose, subject to consultation, to transfer from the Judicial Committee of the Privy Council to the new court their present jurisdiction over devolution issues. This will enable us to restore a single apex to the United Kingdom's judicial systems. The Judicial Committee of the Privy Council will, however, remain in being to continue its work as the final court of appeal for a number of Commonwealth and Crown Dependency jurisdictions.

This will be a new United Kingdom court. It will stand in exactly the same relationship to the courts in Scotland, Northern Ireland and England and Wales as the Appellate Committee of this House does now. The independence of the three judicial jurisdictions will be totally respected. Arrangements will be made, as now, to secure appropriate representation for Scottish and Northern Irish judges.

The Government also propose to establish an independent judicial appointments commission for England and Wales to recommend candidates for appointment as judges. At present, judges are effectively selected by the Lord Chancellor. It is unsustainable for a Minister to continue to select judges in this way. The process of selection of judges for appointment in England and Wales must be demonstrably impartial and independent, as it now is in Scotland and will be in Northern Ireland.

Appointments will continue to be made solely on merit. But in addition, a judicial appointments commission will insulate more the appointment of judges from politicians and will assist in opening up appointments to some of the groups of lawyers which are under-represented in the judiciary at the moment, including women, ethnic minorities and, at the higher levels, non-barristers.

The Government propose, subject to consultation, that the new independent judicial appointments commission would make recommendations to the Secretary of State. This model would significantly curtail ministerial involvement by placing the process of selecting candidates in the hands of the commission. However, the Secretary of State would still remain ultimately accountable to Parliament for the actual appointment. This model would therefore preserve the constitutional convention that Her Majesty the Queen acts on the advice of her Ministers.

The Government propose that the commission has a balance of judicial representatives, legally qualified members and lay members. We will seek views on who should chair the commission.

It is proposed that these members are appointed by a separate appointing body. That body would not include Ministers, but would be chaired by a senior civil servant, supported by a senior judge and a senior public figure entirely independent of the judiciary or the executive. Appointments to the commission would be made under "Nolan" principles, further ensuring the commission's independence from Ministers.

The Secretary of State for Constitutional Affairs will remain, after abolition of the post of Lord Chancellor, responsible for ensuring the independence of the judiciary in England and Wales within Cabinet, and consideration should be given to whether that responsibility should be embedded in legislation.

The third of the papers published today is the Government's consultation on the future of the rank of Queen's Counsel, which designates members of the Bar and a small number of solicitors as "senior advocates". The critical issue on QCs is whether the public is best served by the continuation of that rank. If it is, then how should the system be changed?

Last year the Government's wider consultation about the market for legal services aimed to find out how Silk was actually used, and whether users were concerned about market distortions. The results, published in May, show that there is indeed some general support for Silk, but many concerns about how effective a guide it is to quality in advocacy. That is why the Government are now publishing a wide-ranging paper that canvasses all the options from improving the current Silk system to abolishing it completely and leaving it to the legal profession how customers are best informed about the quality of services.

Judicial appointments in England and Wales; a Supreme Court; and the future of QCs are three vital issues which require detailed consideration and consultation. In reaching our conclusions we are determined to ensure that we enhance the transparency of our legal system, increase public confidence and bolster the independence of the judiciary from both the executive and the legislature. In this way we create a modern legal system which builds on its current independence and quality, ensuring a better justice system serving the public. I commend the papers to the House.

3.19 p.m.

Lord Strathclyde

My Lords, I am sure I speak for the whole House when I say how grateful we are to the noble and learned Lord the Lord Chancellor for making this Statement this afternoon. The fact that it comes more than a month after the Prime Minister announced the abolition of the office of Lord Chancellor and that it is being made by the noble and learned Lord as Lord Chancellor tells us all we need to know about how carefully it was all thought through.

In replying to the Liaison Committee in another place, the Prime Minister was unable to point to any consultation at all with Cabinet colleagues, the senior judiciary or the legal profession. It is not a pretty way to do government, and now we are faced with the prospect of trying to put the pieces back together again. These consultation papers will no doubt help, but does the noble and learned Lord see that they should have preceded, not run after, announcements of policy? The noble and learned Lord has suggested in his many press interviews today that there may be urgent legislation. Can he now say how he will advance to that point, for these papers are riddled with unanswered questions? I counted 72 in all. The consultation only closes in November. Will there then be a White Paper, bringing together the separate strands? Can there really be properly thought-out legislation in time for the next Session?

The Government like to say that current arrangements are outdated. I am frankly more interested in whether they work, and whether what we put in their place will be better. Modernisation has become a great mantra for this Government, but I wonder whether it is enough any more to say that something is old to prove the case that it is bad. Our constitution is not bad because it is old; it has become old because it is good and has stood the test of time.

We on this side of the House do not oppose thought of reform. But the onus is on the noble and learned Lord to say why present arrangements must so urgently be changed. Can he tell us the problem that he is trying to solve? If it is a question of the independence of the present Law Lords, can he say in what respects they are not now independent? Is there some instance of political interference or connivance with the Lords of Appeal that he knows about and the rest of us do not? If so, he has a duty to lay that evidence before Parliament. If the issue is the fact that the noble and learned Lord the Lord Chancellor is entitled to sit as Lord of Appeal, could not that be dealt with, as the noble and learned Lord, Lord Lloyd of Berwick, said on 18th June, by saying that in future he should not sit? Would that not enable things to continue without the immense upheaval now proposed by the Government?

Today there are two key constitutional issues: first, the establishment of a supreme court outside Parliament and, secondly, the creation of a new appointments commission to appoint judges. On a supreme court, what is the rationale for stopping the Privy Council arbitrating on disputes on the devolution settlement when the Judicial Committee of the Privy Council is, in any case, to continue? Will the noble and learned Lord confirm that if the change were not made, the role of the new court would be exactly the same as that of the present one?

Will the noble and learned Lord also clarify the position on the place of Law Lords in this House? This House, I believe, much values the presence of noble and learned Lords. If Lords of Appeal are removed, will they still come here on retirement? Does he have a view on that and, if they do not come here then, as of right, who will determine who has merited a peerage in the conduct of their judicial office? Will that be under the authority of the Prime Minister and, if so, what would that do for judicial independence? If there is no Lord Chancellor, can the noble and learned Lord say who will speak with authority in defence of the judiciary and protect its impartiality in this place and in the Cabinet?

The noble and learned Lord says that one reason for change is that he wants to have a more campaigning role on legal issues than the Lord Chancellor can. How does that square with policing the frontiers between politics and judicial impartiality?

One argument for change in the paper is that the Law Lords need new offices. They could be better housed, but that is not a conclusive argument for constitutional change. After all, who will supervise the building or adapting of new premises? Would it be the noble and learned Lord himself? One would not want another Holyrood—or even another Millennium Dome.

On a judicial appointments commission, will the noble and learned Lord say where the present system has so critically failed as to justify change? Has there been a serious problem with the appointments made under the authority of the noble and learned Lord, Lord Mackay of Clashfern, or the noble and learned Lord, Lord Irvine of Lairg? For the record, we see none. Could not any problems over the present system have been addressed with a little more openness?

The Statement and the consultation paper return time and again to the theme of diversity. It is a well trodden and worthy path, but there is no substitute for merit in appointment. The noble and learned Lord cannot pin his standard to that mast and then argue for alternatives to it. It is not a circle you can square. Surely no one would want to replace the phantom of political interference with preferment by political correctness. Will a lay chairman of a judicial appointments commission increase or reduce fears of appointment on grounds other than merit? And who will write the criteria for appointment?

The noble and learned Lord says the commission will have its independence assured by being appointed by a senior civil servant—in whose department, we do not know—a senior judge—not even a High Court judge—and a senior public figure, whatever that means. What have the senior Law Lords, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division done so wrong that they must be replaced by these people? If the case for change is to take things away from the Lord Chancellor to stop political interference, what is the case for putting the process under the veto power of a far more political Minister than a Lord Chancellor could ever be? It looks a little illogical—indeed, a little odd—and very much made up on the hoof.

The noble and learned Lord has announced a huge package of change, rushed out in a hurry and still only half thought through. It still raises far more questions than it answers. What we have now works well—nothing in these papers suggests it does not. We have a judiciary of high reputation that bears no taint of political interference. Debate on change may be necessary, but this is not exactly an issue where the public have risen up in anger, as they have about tuition fees, foundation hospitals or rising crime. Having started so badly, we should surely take what time is needed to get the answers right.

If the result of the most botched reshuffle in living memory were to be botched and hasty legal reform, we shall all regret it for very many years indeed.

3.27 p.m.

Lord Goodhart

My Lords, we on these Benches welcome these reforms in principle. That is hardly surprising, since they are reforms that we have advocated for many years. However clumsy and cackhanded the method by which they were introduced a few weeks ago, we must take the view that we support them.

We therefore welcome the proposal that a separate supreme court should be set up. It is a well known saying that justice must not only be done, it must be seen to be done. It seems equally true that Law Lords should not just be distinct in practice from the legislature but should be seen to be distinct. No other country in the world has this quite extraordinary historic muddle of a House of the legislature also nominally sitting as the supreme court of the land.

We welcome the proposal that the supreme court should have jurisdiction to decide devolution issues. That means that there will be a logical solution in which there will be a single court with final jurisdiction in the United Kingdom and a separate court—the Judicial Committee of the Privy Council—with jurisdiction on matters from some of the Commonwealth countries and the Crown dependencies.

We therefore agree that the members of the supreme court should not be active Members of your Lordships' House at the same time. So long as the present system of appointment of Members of your Lordships' House continues, we take the view that retired Justices of the Supreme Court should be eligible for, though not necessarily entitled to, appointment to your Lordships' House.

So far as the appointment of Members of the supreme court is concerned, we believe that the existence of a commission is essential. It will of course have to be separate from that which was responsible for judicial appointments to the courts of England and Wales.

It is absurd to have a judicial appointments commission responsible for the appointment of judges to the lower courts, but not for appointments to the highest court of all, where crucial—and the most politically sensitive—decisions are taken. If Ministers are involved, it is impossible to exclude politicisation. It is widely believed that the government of Prime Minister Harold Wilson refused to recommend the noble and learned Lord, Lord Donaldson of Lymington, for appointment to the Court of Appeal because of trade union pressure as a result of his role in the national industrial relations court. That kind of problem could happen again.

The setting up of a separate supreme court will involve costs. There will be future running costs, which, if the judges of that court are given the facilities that they lack in your Lordships' House, may be high. Will the Government undertake to fund the transitional costs and the additional running costs, and not take them out of what is already a grossly over-stretched budget for the Court Service? Will the Government agree that, as a United Kingdom court, the supreme court should have a budget entirely separate from that of the lower courts in England and Wales?

We welcome the judicial appointments commission. We believe unquestionably that appointment on merit must remain paramount and that the present method of selection does not necessarily achieve that. It brings judges of high intelligence and integrity, but it is skewed towards successful advocates. The qualities of a good advocate are not necessarily the same as the qualities of a good judge. Therefore, the system is biased against solicitors, academic lawyers and women, because of the effect on women of their career breaks. We believe that the role of Ministers in appointments should be minimised, and that some of the Government's intended alternative proposals give Ministers too much discretion.

For example, a system by which the JAC, gave a Minister a list of candidates regarded as acceptable, and let the Minister choose any name from that list, would be wholly unacceptable, because there could be so many names to consider. A more limited version would be to give Ministers two or three names to choose from, as now happens with bishops. But even that is dubious. How can a Minister be in a position to second guess the JAC? If a Minister is to play any real role, it should be on the basis that they are given only one name to appoint or refuse.

We welcome the proposal that appointments to tribunals should be unified and brought under the JAC. We look forward with interest to the proposals for an alternative career path for some members of the judiciary to enable them to start taking limited—junior—appointments at a relatively young age, and proceed from that up the judicial ladder. We are not committed to that, but it is worth considering.

Regarding the factors which deter people from applying for or accepting appointments, we should also consider the abolition of the circuit system for High Court judges. That requires all High Court Judges to be based in London, but spend several months on circuit—that is very "family unfriendly". In my view that should be replaced by permanent branches of the High Court in major cities.

The balance of five judges, five lawyers and five lay members for the JAC is acceptable. I do not think that a lay majority is desirable, but there should be a larger lay involvement, or even equal numbers, as with the Scottish commission, provided that we have a judicial chairman. We welcome the proposal for the appointment of members of the JAC by an independent nominating body, and the use of Nolan principles for those appointments.

The last of the three papers concerns the future of Queen's Counsel. That is of the least constitutional importance, but it is clear that a government department should have no role in conferring that rank on members of an independent profession. We look forward to taking part in debates on the statutes that will give effect to these proposals. We should end up with a judiciary and a court system that are even better than those which we already have.

3.35 p.m.

The Lord Chancellor

My Lords, I thank the noble Lord, Lord Goodhart, for his support for these papers. I take it from the remarks of the noble Lord, Lord Strathclyde, although he was not clear whether he opposed the proposals—because he only talked about process—that he probably opposed them. I agree with him, first, about the quality of the current judiciary—there is no attack on that whatever—and, secondly, on the quality of appointments made by my noble and learned friend Lord Irvine and his immediate predecessors.

The noble Lord, Lord Strathclyde, asked why we have done this. First, in relation to the supreme court, it is because judges who are appointed to the final court of appeal should be judges, not legislators. They are people who decide what the law is, not who participate in the making of the law. If we are serious about the separation of powers, then we should have a system that reflects that. I am glad that I am in the company of my noble and learned friend Lord Bingham, who strongly supports such a view. I shall wait for the comments of noble Lords opposite regarding the detail of that proposal. I gather that the noble Lord, Lord Strathclyde, is against that.

Lord Strathclyde

My Lords, perhaps the noble and learned Lord is making a clever legal point, but I said—and I have checked the record—that we do not oppose the thought of reform, but is up to him to say why the present arrangements should be so utterly changed. Could he explain that?

The Lord Chancellor

My Lords, I am grateful; I had not realised that the noble Lord might support the proposals for a supreme court. I apologise. Regarding the independent appointments commission, the noble Lord, Lord Strathclyde, made various points about the independence from politicians of the appointment of judges. The current system is that a Cabinet Minister makes the relevant recommendation in relation to all of those appointments. If the noble Lord is serious about removing politics from the appointment of judges, I would have thought that he would have backed the widely supported view that there should be an independent appointments commission—just as in Scotland, and just as has been introduced by legislation for Northern Ireland.

The noble Lord. Lord Strathclyde, asked why we were transferring devolution matters from the Privy Council to the Appellate Committee. He will recall that the reason that the matter went to the judicial committee of the Privy Council was that it was thought that it was wrong, when the issue was between the United Kingdom and the Scottish Parliament or the National Assembly for Wales, that the UK Parliament should be sitting in decision on such issues. If one creates a supreme court separate from Parliament, that issue goes.

The noble Lord's next question was about the place of the Law Lords. It is essential, if one has a supreme court, that the Law Lords, who are currently the highest court of appeal in this country, should not sit in this place so that one properly reflects the separation of powers. That is at the heart of the proposal for a supreme court. Will they come into this place as legislators afterwards? It is hard to imagine a more distinguished group who would not deserve to come in afterwards.

The noble Lord, Lord Strathclyde, asked who would defend the judges. That will be done by the Secretary of State for Constitutional Affairs. Regarding their independence, we specifically raised the question in the consultation paper whether or not that obligation to defend the independence of the judiciary should be reflected in statute. The noble Lord said that political correctness should not determine who becomes a judge. Correct. It should be quality and I see no distinction between, on the one hand, quality, and on the other a diverse Bench.

The noble Lord then asked what criteria were to be set for the appointment of judges. The basic criteria should be set by the Minister—that is made clear in the paper. The selection of individuals is a matter for the independent appointments commission.

The noble Lord's next question was about the body that will appoint the members of the appointments commission. They shall consist of a senior judge—a High Court judge or above—a senior civil servant in the Department for Constitutional Affairs, an independent person entirely separate from the executive and the judiciary, and an independent assessor to see that the system works.

We aim to get an independent system. I understood—again, I may have misunderstood it—that the noble Lord would require a Cabinet Minister to continue to appoint the judges, rather than a system where a group of the sort that I have described appoints the appointing commission. The proposals that we make are for a much more transparent and independent process. I believe that we are doing the right things to build on the strength of our judiciary and legal system.

3.40 p.m.

Lord Renton

My Lords, bearing in mind that our judicial system has for generations been admired throughout the Commonwealth and indeed most of the world, will the Government in making the changes remember that, where change is not necessary, it is necessary not to change? In particular, will they bear in mind that having experienced judges—the Law Lords—able to contribute to the quality of our legislation is very important? If we lose the benefit of their advice on legislation, it may deteriorate.

The Lord Chancellor

My Lords, I again make it clear that we all hold the judges in the highest possible regard. I also believe that the time to make such change is when the system is strong and not under pressure from outside. It is because our judicial system is held in such high repute that we can now make changes from a position of strength, rather than, as has happened in other countries, being forced into change at the wrong time. I believe that a supreme court and an independent appointments commission for England and Wales is the right way forward.

So far as the second point is concerned, the House is filled with distinguished lawyers and distinguished retired judges. They can provide the contribution that this House needs, while keeping those who constitute the final court of appeal separate from the making of law, rather than their deciding what the law means.

Lord Lloyd of Berwick

My Lords, I have two short questions for the noble and learned Lord the Lord Chancellor, both on the new supreme court. I do not intend to address the other issues raised this afternoon.

The first question is simply this: did the Government consult the Law Lords, formally or even informally, before announcing on 12th June that they would cease to be an appellate committee of this House and become instead a new supreme court in some other building? If not, why were they not consulted? Who said, as has been said this afternoon, that they need new offices? Who said that they need new facilities? We have, however, always been well aware that there are those in this House who cast envious eyes on the offices—they are not very large—that we occupy.

Who said that we need a new supreme court, no longer called the Law Lords, in order that we can hold up our heads among other supreme courts throughout the world? The noble and learned Lord referred to the views of the noble and learned Lord, Lord Bingham. Those views were expressed in the course of an academic lecture. Perhaps the noble and learned Lord the Lord Chancellor will remind us whether the noble and learned Lord, Lord Bingham, purported to express the views of the other Law Lords. I suspect that if the noble and learned Lord the Lord Chancellor inquires he will find that the answer, with one possible exception, is no.

That is my first question.

Noble Lords

Oh!

Lord Lloyd of Berwick

My Lords, my second question is even longer. Is the noble and learned Lord aware that the royal commission that sat under the noble Lord, Lord Wakeham, and reported in January 2000 received what it described as an "impressive range of evidence", including the evidence of my noble and learned friend Lord Slynn and my noble and learned friend Lord Nicholls? Is he aware that the royal commission concluded that the Law Lords should continue in their present role as full Members of this House, despite the theoretical objections based on the separation of powers that he has now advanced? What has happened since 2000 to suggest that the royal commission was in any way in error? If nothing, is there any point in having royal commissions making specific recommendations, as it did, which are simply given the go-by?

The Lord Chancellor

My Lords, I shall deal first with the first question. As my right honourable friend the Prime Minister made clear to the Liaison Committee, there was no consultation immediately before the announcement or in the build-up to the announcement on 12th June.

The noble and learned Lord answered the second part of his first question. Who says that there should be a supreme court and different premises? The noble and learned Lord, Lord Bingham, for one, and the noble and learned Lord, Lord Steyn, for another. The noble and learned Lord, Lord Lloyd of Berwick, is absolutely right: they do not speak—nor could they purport to speak—on behalf of all the Law Lords in relation to that, and I do not know the views of all the Law Lords.

As the noble and learned Lord will know, however, there is very strong support, including among the senior judiciary—I name the noble and learned Lord, Lord Bingham, who has made it clear publicly—that there should be a supreme court. Why? In my view, there should be one because it is clear that having the final court of appeal in the second Chamber of Parliament does not give effect clearly to the separation of powers. We are talking about a court deciding on the law, not making the law. If we talk the language of separation of powers, we should separate the powers. A member of the Commonwealth Secretariat said that we should be careful not to insist that developing countries adopt our system, because it does not adequately reflect the separation of powers.

I am aware of what the royal commission said. We have to make a judgment about the right way forward, but we believe that it is to give clear effect to the separation of powers in that respect.

Lord Simon of Glaisdale

My Lords, there is an almost universal apprehension that this momentous constitutional matter has been mishandled. Indeed, the noble and learned Lord the Leader of the House very properly apologised for it—but an apology is virtually worthless unless it implies an undertaking to do better in future. Rather than pushing on heedlessly, is it too late to appoint a royal commission to consider this matter carefully and fully?

The Lord Chancellor

My Lords, the announcement on 12th June in substance said that we wished to move to a supreme court and have an independent appointments commission for the appointment of judges in England and Wales. That remains our policy. As was pointed out by the noble Lord, Lord Strathclyde, a detailed series of consultation papers deals with that. We want to hear people's views on the 72 questions that he very conscientiously counted in the consultation papers. The right course is for us to set clearly the policy outcomes to which we aspire, and then have full consultation on the detail of how we do it. That is the way in which we are proceeding.

Lord Carter

My Lords, do any of the proposed reforms described by my noble and learned friend in his Statement have any link to or effect on his role as Speaker of the House of Lords?

The Lord Chancellor

My Lords, none of them has any impact on that at all. It is a matter for this House to determine how the Lord Chancellor discharges that particular function.

Baroness Carnegy of Lour

My Lords, is it the case that the removal of the Lords of Appeal from the House of Lords cannot be achieved without amendment to the Act of Union of England and Scotland?

The Lord Chancellor

No, my Lords, it can be done without amendment to the Act of Union. The critical point in relation to the Act of Union is that no appeal from Scotland should go to an English court. Therefore, we make it clear in the consultation papers that the supreme court must be a United Kingdom court, not an English court.

Earl Russell

My Lords, does the noble and learned Lord agree that the placing of the supreme court in Parliament better fits the circumstances of 1295 than of 1995, and that a good deal of water has flowed under the bridge since then? Perhaps I may join in the general welcome that has been extended from these Benches, in particular to what he has said about diversity. Does he agree that the noble Lord, Lord Strathclyde, in setting diversity and merit in opposition, is offending against the law of averages? Perhaps I may ask him in that context whether he will study the report from the Young Solicitors Group, which was mentioned briefly in The Times last Monday. It drew attention to the difficulties faced by married women returning to the profession because of family-unfriendly employment practices. Putting that right is a necessary part of sustaining the pool of future qualified judges.

The Lord Chancellor

My Lords, I am grateful to the noble Earl for his support. I always agree with his historical analyses, because he is much cleverer than me. I do not know which laws the noble Lord, Lord Strathclyde, was offending in his remarks, because it was difficult to determine what he was opposing and what he was not. I did not take him to be opposing greater diversity so long as merit was also the touchstone of appointment. I see that he is nodding at that. It might have been that the noble Earl was being unfair to noble Lord, Lord Strathclyde.

In conclusion, I was aware of the newspaper report about young solicitors and what happens during the course of their careers. A critical point that has often been made is that people entering the profession have become much more diverse as time has gone on. It is frequently asked why one does not merely allow that to filter through to the time when appointments are made. If one looks at what happens to someone during their professional life, the attrition rate for women, for example, is much higher than it is for men. If one were to approach it just on that basis, one would not see that diversity. We should also remember that appointments need at all times to be made on merit, as perhaps we would all desire.

Lord Borrie

My Lords, my noble and learned friend has implied just now, as he has done on previous occasions, that as individuals set out on their professional life in their 20s, there is a good proportion of women and ethnic minorities, but that they do not survive the 20 or 30 years necessary to get the experience that is traditionally thought to be desirable for appointment as a judge. I understand that certain solutions are suggested in the paper that my noble and learned friend has produced today, including the alternative career path. Perhaps I may ask him whether it is not possible for my noble and learned friend himself to persuade the professional bodies to ensure that solicitors' practices and chambers at the Bar adopt the kind of approach that the noble Earl, Lord Russell, has described—namely, more family-friendly policies—so that throughout the normal professional experience of solicitors and barristers, women and ethnic minorities do not fall by the wayside, as has been happening only too frequently.

In so far as a new career path is introduced, and people are appointed as judges at a relatively young age on a part-time or temporary basis, would the noble and learned Lord the Lord Chancellor ensure that the professions get rid of whatever rules and conventions now exist that say that once one becomes a judge, one may not return to private practice?

The Lord Chancellor

My Lords, I agree with my noble friend that whatever the level of diversity at the entry point into the profession, it decreases as one goes on. It is important that one tries to remedy that as much as possible in the appointment of judges. I agree with my noble friend that it would he helpful if professional organisations were to promote greater diversity within the profession, but that is matter for the individual professions rather than for the Government. We set out the legal framework. How the professions then organise themselves is primarily a matter for them.

Lord Alexander of Weedon

My Lords, I return to the question of judicial independence. As the noble and learned Lord the Lord Chancellor has rightly stressed, the crucial, ultimate step will be the appointment of the judges. That will be made by the Minister. That Minister is currently the noble and learned Lord the Lord Chancellor. That Minister therefore has a recognised legal qualification that makes him competent to take those decisions. Will it be a requirement that the appointing Minister will be similarly legally qualified?

The Lord Chancellor

My Lords, That is not stated in the consultation papers one way or the other. The proposal that, subject to consultation, is most backed in the consultation paper about the independent appointments commission is that it should put one name to the Minister to select or reject. On the question of whether the Minister needs to be a lawyer or not in defending judicial independence, when that is his role, Ministers make a whole range of appointments. not just in the legal field, but in other fields as well. They do not normally need to have the qualification relevant to that particular appointment, but I believe that they do need to have enough stature to deal with the matter and a proper understanding of the constitutional position. That is why the paper is right to say that that should be enshrined in statute. It does not follow that the holder of the role of Secretary of State for Constitutional Affairs needs to be a lawyer.

The Lord Bishop of Chester

My Lords, perhaps I may risk a remark from these Benches. I am conscious of a remark by St Paul, who began one of his passages with, "I speak as a fool". One wishes to support the general principles which underlie the proposals. There is also a nagging sense, not only on the Conservative Benches, that things may be lost without us quite realising it. It may well be that the fact that the present arrangements have existed for so long has contributed to the particular quality of our democracy and the character of Parliament. Parliament has been enhanced precisely by the presence of a high judiciary.

I wonder whether politics will enter that process whether we like it or not. One has seen it in America in appointments to the Supreme Court. One is anxious that the Secretary of State for Constitutional Affairs might end up a more political figure than the Lord Chancellor has been. The Lord Chancellor has been protected from that precisely because of his primarily judicial role and by the fact that he has been able to insist on sitting as a judge. How can we ensure that the long arm of politics will not find its way into that process and influence appointments of those who perhaps end up appointing those who appoint the judges? What guarantees are there? That is the concern that was expressed by the Leader of the Opposition.

The Lord Chancellor

My Lords, I agree with the right reverend Prelate that we should be sure that we do not lose the good bits of the current system. One of the good bits is the fact that judicial independence has been assured. That has in part been because of the role of the Lord Chancellor in defending judicial independence. That is why we have proposed specifically that the responsibility for ensuring judicial independence should be reflected in statute. That way, what must be defended and who it is defended by are clear. Having said that, the position is strengthened. The role of the independent judiciary, which has behaved with complete independence in the past, is assured by a system that insulates them from politicians in a more effective way than is the position at the moment.

Baroness Howe of Idlicote

My Lords, while I welcome many of the changes, however rushed or otherwise the appointments made in the reshuffle may have been, there is no doubt whatsoever that there have been plenty of reports and plenty of ideas circulating for very many years. Not least, two committees of Justice, over a period of 10 years, have recommended just that sort of approach. I am sure that many of us welcome the proposals for diversity, in particular, and the flexibility of some of the arrangements that are suggested for the appointments commission in choosing new judges. One particular issue worries me. I share the concerns expressed about the fact that the Law Lords will not sit in this House. I do not think that I heard an answer to a question that was asked. If they must be outside when the supreme court is sitting, how are they going to get back in, because we would need them all? Is it to be via the House of Lords Appointments Commission. in the same way as most other Members of the House of Lords will be proposed?

The Lord Chancellor

My Lords, I am grateful to the noble Baroness. She was involved with the Stevens commission, which dealt with this very issue. It recommended that there should be a form of appointments commission.

As regards Law Lords sitting in this House, the position will be different for those who are currently Law Lords and who will form the initial members of the supreme court. They will not be able to sit and vote here while they are members of the supreme court. Once they cease to be members of the supreme court, they can come back. In relation to the subsequent appointments, members of the supreme court will not be appointed to the House of Lords but, as I made clear, it is hard to imagine a group which would be more suited to coming into the House.

I should at the outset have disclosed a possible interest. I was a Queen's Counsel and my wife is a Queen's Counsel. I apologise for not making that clear at the outset.