Judicial Independence (Hansard, 13 November 2003)

§ The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)
My Lords, I have had several constructive meetings with the Lord Chief Justice about the constitutional reforms I announced to this House on 14th July. I expect to have further discussions. Protecting judicial independence is fundamental and was one of the principal reasons why the reforms were introduced. I am committed to ensuring that such independence is maintained and strengthened.

§ Lord Dholakia
My Lords, I am grateful to the noble and learned Lord for that Answer. However, despite all the assurances given to the your Lordships' House, it is clear from the comments of the noble and learned Lord the Lord Chief Justice only last Friday that judicial independence is at risk from the Government's constitutional reforms. The Judges' Council report states that the reforms that are proposed, would enable a future government to create a judiciary that was committed to its own political agenda by selecting criteria that would result in the appointment of judges sympathetic to its policies". Does the noble and learned Lord accept that judicial independence is at the heart of our democratic process? What action does he propose to take to ensure that the appointment and functions of the judiciary are not tampered with?

§ Lord Falconer of Thoroton
My Lords, I entirely accept that judicial independence is at the heart of our constitution and our democratic process. I would also entirely accept that the judges, the Government and I are at one in ensuring that that independence is preserved under the changes that we introduce. One way in which we seek to embed and strengthen judicial independence is by taking the ability to appoint judges from the hand of a government Minister and placing it much more firmly in the hands of an independent appointments commission. We must discuss the matter in detail with the judges to ensure that we get the detail right.

§ Lord Sheldon
My Lords, is my noble and learned friend aware that the law of unintended consequences can have powerful results in a country without a written constitution? What we do have is a tradition that has given the judiciary the independence that has been entrenched in that particular tradition. Will my noble and learned friend acknowledge that the role of Lord Chancellor has provided the high position and special standing as the head of the judiciary from which we have all benefited? Is he absolutely certain that, before tinkering with one of the foundations of our liberties, he will be able fully to justify these changes?

§ Lord Falconer of Thoroton
My Lords, as we have made clear at every stage, the preservation and strengthening of the independence of the judiciary is what we seek to achieve. As I said in answer to the noble Lord, Lord Dholakia, it is a fundamental part of our constitution. That is why the detail matters and that is why we have adopted our approach. As somebody said this morning, imagine if we had said to Parliament or the judges, "How about having a Cabinet Minister appoint the judges, discipline a large number of them and decide where individual judges sit?". We do not believe that that is a sensible basis on which to continue. The independence of the judiciary is embedded in our constitution. We will ensure that that is reflected in the statute that we introduce.

§ Lord Ackner
My Lords, will the noble and learned Lord explain why the Sentencing Guidelines Council set up by the Criminal Justice Bill was pre-empted by the Home Secretary producing Schedule 19, which ups by 50 per cent the sentence previously approved by the Lord Chief Justice himself and the Lord Chancellor? In the words of the Lord Chief Justice in his memorandum deposited in the Library, that has made it quite impossible to accommodate those who, as a result of that upping by 50 per cent—without any consultation—will over-fill the prisons and, as a result, it will show that judicial discretion has been tampered with by ministerial decree.

§ Lord Falconer of Thoroton
My Lords, there is no doubt that sentencing is a matter for judges and Parliament together, sometimes by setting minimum sentences, sometimes by setting maximum sentences and, in the case of murder, by setting out principles in statute. As has been made clear in all of the debates in this House, the provisions set the starting point in each individual case. It is then for the judge to reach a conclusion about the right sentence based on the merits of the case.

§ Lord Mayhew of Twysden
My Lords, to what deficiency on whose part does the noble and learned Lord the Lord Chancellor attribute the Lord Chief Justice's present anxiety for the future independence of the judges?

§ Lord Falconer of Thoroton
My Lords, so far as the current position is concerned, there is absolutely no deficiency whatever in the independence of the judges. However, as was made clear on 12th June when the reforms were first announced and on 14th July, we need to embed that independence and look forward to the future. As we made clear, having one person making all the appointments is not an appropriate way forward. An independent Appointments Commission preserves independence and provides a better way for the future. Every other modern, developed democracy has been able to have that. I think that we can.

§ Lord Thomas of Gresford
My Lords, will the supervising and disciplining of the judiciary be in the hands of an elected government Minister, such as the Home Secretary, after these reforms come into effect?

§ Lord Falconer of Thoroton
My Lords, the disciplining of the judiciary is absolutely vital to ensure the independence of the judiciary. We made it clear in the paper that we produced on 14th July that, with the absence of the Lord Chancellor—with the abolition of that role—new arrangements would have to be introduced. Those arrangements must give the judiciary 1573 confidence. They cannot be ordered to give particular decisions by the executive. That is vital. It would have to be a partnership between the executive and the judiciary.

Lord Renton
My Lords, will the noble and learned Lord confirm that some of our ablest judges have served in Parliament and belonged to various parties?

§ Lord Falconer of Thoroton
My Lords, indeed, if one looks back in history, some of our ablest judges have indeed served in Parliament and have been members of political parties.

§ The Earl of Listowel
My Lords, is the noble and learned Lord the Lord Chancellor concerned that in the Criminal Justice Bill the minimum starting point is being raised from 12 to 15 years old for those children who kill? Only last May, the Lord Chief Justice, with advice from the Sentencing Advisory Panel, decided that the minimum starting point should be 12 years old. Is the Lord Chancellor concerned that a minimum starting point at 15 years old is being imposed on the judiciary? Does that not inevitably lead to an increase—perhaps only a slight increase—in the likely length of sentence for those children? Is he not concerned about that?

§ Lord Falconer of Thoroton
My Lords, I know that the noble Earl has participated fully and helpfully in all the debates on the schedule in which the juvenile figure is mentioned. There are different starting points for different ages. Most juveniles convicted of murder are convicted at the age of 16 or 17. The schedule allows a starting point for different ages. It also allows judges to take into account the precise age at which the offence was committed. There is still a substantial discretion.