Constitutional Reform (Hansard, 26 January 2004)

HL Deb 26 January 2004 vol 656 cc12-30 12

§ 3.8 p.m.

§ The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)
My Lords, with the leave of the House, I should like to make a Statement on the judiciary-related functions of the office of Lord Chancellor.
13 On 14 July, I published consultation papers on the establishment of a new way of appointing judges, the creation of a new Supreme Court and the future of Silk. In September, I published a paper on the abolition of the office of Lord Chancellor. We are grateful to those who responded to our consultation process. The Government are today publishing summaries of those responses.
As set out in the gracious Speech, we intend to bring forward legislation to enact these changes. It is for Parliament to consider that legislation, and my proposals today are conditional upon parliamentary approval. Today, I wish to set out our proposals for the future handling of those functions of the office of Lord Chancellor which relate to the judiciary.
I have had detailed discussions with the Lord Chief Justice, who has been speaking on behalf of the judges on these issues. I am pleased to be able to tell the House that the terms of today's Statement have been agreed with the noble and learned Lord the Lord Chief Justice. The Lord Chief Justice's agreement is, of course, conditional on Parliament's approval of our proposals. I think it is right that Parliament should be told first of the results of those discussions.
In making changes, we must secure embedded, enduring judicial independence; good working relationships between the judiciary and the executive; high quality judges; and high public confidence in the judiciary. I believe that, taken together, our reforms and the proposals in this Statement will help to secure those aims.
The reforms seek to clarify and embed in statute the principle of judicial independence. Judges must enforce, impartially, the law made by Parliament. The executive must continue to guarantee security of judicial tenure and remuneration, and ensure that the judiciary is supported by an efficient and effective system of court administration.
We propose that there should be a general statutory duty on the Government, all those involved in the administration of justice and all those involved in the appointment of judges to respect and maintain judicial independence. In addition, there should be a separate specific duty falling on the Secretary of State for Constitutional Affairs to defend and uphold the continuing independence of the judiciary.
But the judiciary does not operate in a vacuum. It is part of a constitutional framework in which Parliament is the supreme law-making body. The Government, through Parliament, must ensure that the needs of the public are fully served by our legal system. Parliament must be able to hold the Government to account for the operation of the justice system and the resources provided for it.
That clearly requires a partnership; the Lord Chief Justice and I are determined that the successful partnership between my department and the judiciary should he sustained and entrenched for future generations. But to maintain this partnership without blurring the boundaries of responsibility requires clarity and transparency. To that end, we intend to define in the forthcoming Bill the respective 14 responsibilities of the Secretary of State for Constitutional Affairs and those of the Lord Chief Justice, as the most senior judge in England and Wales.
The Bill will make it clear that the Secretary of State is responsible for the administration of the courts; that he is accountable to Parliament for the efficiency and effectiveness of the court system; and that he is responsible for supporting the judiciary in enabling it to fulfil its functions.
The Lord Chief Justice will lead the judges, with the authority that comes from being appointed as chief judge. He will be responsible for ensuring that the views of the judiciary are effectively represented; he will be responsible for the education and training of judges; and he will be responsible for the decisions on deployment of individual members of the judiciary.
The Lord Chief Justice should therefore be given the additional title of "President of the Courts in England and Wales". He should also no longer be the President of the Queen's Bench Division of the High Court. That should become a new post in its own right.
As regards deployment, we propose that responsibility for setting the overall framework for the organisation of the court system should be exercised by the Secretary of State, in consultation with the Lord Chief Justice. When it comes to the posting of individual members of the judiciary within that framework, however, responsibility should fall to the Lord Chief Justice.
I announced in July the Government's proposals for a judicial appointments commission and consulted over the summer on the detail. Central to the appointments process will be a new, clearly independent, judicial appointments commission. The commission will have full responsibility for the process of advertising vacancies and evaluating candidates for judicial appointment. No candidate will be appointed to the judicial posts for which the commission will be responsible unless recommended by the commission. The sole criterion for the commission in making its recommendations will remain that the appointments must be made on merit.
To ensure proper accountability to Parliament, the final decision on whom to appoint—or whom to recommend to the Queen for appointment—should remain with the Secretary of State. However, the Secretary of State's discretion must be severely circumscribed. He should be able to appoint only candidates recommended by the commission and should have strictly limited powers to challenge those recommendations. It is not right that a political appointee (albeit one always acting in good faith) should be able to cut across the system to appoint who he or she thinks is right.
Magistrates are a very important part of the judicial family and we propose that equivalent arrangements apply to the magistrates' appointments. On the advice of the local advisory committees, the judicial appointments commission will make recommendations to the Secretary of State, who will have the same limited powers to reject as he does in relation to the professional judiciary. For administrative reasons, the commission will not be able 15 to begin dealing with the appointment of professional judges and magistrates at the same time. We propose, therefore, that for an interim period the Lord Chief Justice will fulfil the role of the commission for magistrates' appointments.
It is vital that the commission itself should incorporate the expertise of the judiciary and the legal professions, but also the demonstrable impartiality and wider experience of those who are not from the legal world. We propose, therefore, that the chair of the commission should be neither a lawyer nor a judge, and that the largest single group on the commission should be members who are neither lawyers nor full-time judges. The commission will include members of each level of the judicial hierarchy, up to the Court of Appeal, and will be required to consult the Lord Chief Justice during the recruitment process. The Lord Chief Justice will be able to engage judicial colleagues. That will ensure the commission is able to benefit from the views of the judges about potential candidates, and about any particular requirements for a vacancy.
In order to ensure that the system is as open and accountable as it can be, and that it is independent of government, we propose that the commission should be fully responsible for the appointments process itself. It should recruit its own staff and submit an annual report detailing its activities over the year. To provide a further guarantee of the impartiality of the system, the commission should establish a system for handling complaints from candidates who are unhappy with the way that their application has been handled. We will provide for an ombudsman to deal with those instances where a candidate remains dissatisfied.
I want to make it clear that appointments will continue to be strictly on merit. But our proposals will greatly improve the transparency, openness and fairness of the appointments system. By doing so, they will help to ensure that the judiciary of the future fully reflects the diversity of the community that it serves—a goal that both the Government and the judiciary seek.
I am also pleased to announce that Dame Rennie Fritchie, the Commissioner for Public Appointments, has agreed to chair the appointing panel for the commissioners. The Lord Chief Justice will also sit on the panel, as will one other member (who will be neither a member of the Government nor a civil servant) to be nominated by the Commissioner for Public Appointments. Once appointed, the chair will be on the panel for the appointment of the other commissioners.
The education and training of the judiciary is the responsibility of the Judicial Studies Board, which is chaired by a senior member of the judiciary and, although staffed by members of my department, is under the control of the judiciary. The Lord Chief Justice will be responsible for the provision and sponsorship of judicial training, within the resources provided by the Secretary of State, with a continuing role for the Judicial Studies Board. We will further propose that the Lord Chief Justice should in future 16 appoint both the chair and members of the Judicial Studies Board, after consultation with the Secretary of State.
The Secretary of State and the Lord Chief Justice will both continue to have a role to play in relation to judicial discipline and conduct. That partnership reflects the importance of respecting the independence of the judiciary, of providing assurance to the public that complaints about judges are subject to proper scrutiny, and of providing accountability to Parliament for the complaints system.
In the most serious cases, in which it falls to be considered whether a judge should be removed from office for incapacity or misbehaviour, removal will be by the Secretary of State with the agreement of the Lord Chief Justice. It will not be possible unless they both agree. For the higher judiciary, removal will continue to be by Her Majesty the Queen on an address from both Houses of Parliament. Such cases will be first investigated by a judge of appropriate seniority and will be able to be referred to a review body.
In less serious cases, the Lord Chief Justice and the Secretary of State will need to agree on any penalties short of dismissal to be applied to a judge. They will be supported in this work by a complaints secretariat, and they will both be consulted about all complaints of any substance, as well as receiving regular reports about all other complaints dealt with. For all cases involving magistrates, local input will continue. The Secretary of State will be accountable to Parliament for the efficient and effective operation of the complaints system as a whole and will continue to deal with correspondence from Peers and Members of Parliament on the subject.
To provide greater certainty and transparency about the process of handling such complaints, the Bill will provide for a complaints procedure to be agreed by the Lord Chief Justice and the Secretary of State that will be set out in secondary legislation. As a further guarantee of the openness and fairness of the new complaints process, we propose that the complainant or the judge concerned should be able to refer the handling of the complaint to the ombudsman.
There are a number of posts, such as the senior presiding judge and the presiding judges, that do not involve formal promotion to a more senior judicial level. Those roles, which are held for a relatively short term by different judges in succession, entail a degree of judicial leadership and a range of administrative functions. We propose that in the future such appointments should be made by the Lord Chief Justice, either in consultation with, or with the concurrence of, the Secretary of State.
The making of rules of court is a key means of giving effect to policy decisions approved by Parliament. Responsibility for the making of rules will remain with the relevant rule committee. The Secretary will allow or disallow rules. We propose, however, that the power to alter rules should be repealed. Instead, we will propose a new power allowing the Secretary of State to require a rule committee to make new rules, or to change existing rules, to achieve a particular desired 17 outcome. It would then be for the committee to consider how best to frame the rules to meet such a requirement. and to submit or resubmit them to the Secretary of State.
The policy that I have outlined today covers the position in respect of England and Wales. My responsibilities also extend to Northern Ireland. Consideration will be given to the future handling of my functions that relate to the Northern Ireland judiciary. That process, which is currently under way, will include consultation with the Lord Chief Justice of Northern Ireland, and will be based on the same guiding principles as in England and Wales, taking into account any provision already made for Northern Ireland to give effect to the recommendations of the Northern Ireland Criminal Justice Review.
The Lord Chief Justice and I will listen carefully to views expressed today in your Lordships' House and elsewhere. Your Lordships will have a further opportunity to consider those issues in more detail when legislation is introduced. To assist in such consideration, we have today placed in the Libraries of both Houses an explanatory document setting out the proposals in more detail.
With parliamentary approval, the reforms that I have set out will guarantee that the independence of the judiciary is protected for future generations. The reforms will clarify the relationship between the executive and judicial arms of the state, improve each arm's accountability, and promote and strengthen partnership, so as to serve the public better.
My Lords, that concludes the Statement.

§ 3.22 p.m.

§ Lord Kingsland
My Lords, the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Chief Justice have been courtesy itself in keeping me informed of the progress of their negotiations and their conclusions on the agreement. They have also kindly let me have foresight of the relevant documents and, indeed, of their speeches in draft. I understand that the same privilege has been extended to the noble Lord, Lord Goodhart.
I am delighted, as I am sure are all your Lordships, to see the noble and learned Lord the Lord Chief Justice in his place. I understand that he has come down to your Lordships' House to explain the judiciary's approach to the agreement. Long may the noble and learned Lord the Lord Chief Justice and his successors exercise their right to speak their mind about vital judicial matters in your Lordships' House. However, I understand it to be the intention of the noble and learned Lord the Lord Chancellor that this will prove to be one of the last times we shall see the noble and learned Lord the Lord Chief Justice in your Lordships' House. Indeed, that privilege will also be denied to his successors.
In the context of today's Statement, I find that fact rather ironic. The philosophy behind the Statement of the noble and learned Lord the Lord Chancellor is to remove the judiciary from the legislature, so that the judiciary will in some way become decontaminated of 18 the influence of the law-making process. Yet, we have an agreement that has been carefully negotiated, albeit in secret, and which will end up as clauses in a Bill that will be placed before your Lordships; and the noble and learned Lord the Lord Chief Justice is here to express his endorsement of that agreement, and those subsequent clauses, even though his right to do so is now threatened by the Government.
I hope that I am not alone in finding the Government's approach to those negotiations, and the welcome given to their conclusion by the noble and learned Lord the Lord Chancellor, somewhat illogical. Perhaps some of your Lordships might even think it—dare I say—hypocritical.
The details of the proposals will be debated at length on 12 February. I wish today simply to place them in the broader context of what I understand to be the Government's legislative proposals. I shall do so, first, by looking at the manner in which the agreement was reached, and, secondly, at its scope.
As to the manner, I trust that I am not alone in thinking that matters of such importance as the independence of the judiciary and the selection of judges should not have been conducted in negotiations in confidence between the executive and the judiciary without any participation by either House of the legislature.
The conclusion that has been reached is rather strange. The party of government has been more enthusiastic than any other political party of this country about pre-legislative scrutiny. I can think of no better set of proposals to undergo that process than those that will be contained in the Bill. I recall when I was involved in the draft Financial Services Bill three or four years ago how successful the pre-legislative scrutiny of that Bill turned out to be. Would not it have been helpful to your Lordships' House, for example, for the proposals in the agreement to be compared with the existing situation? Evidence from senior judges who have direct experience of judicial selection under the existing situation could have been taken. That could have been considered in the context of what the noble and learned Lord the Lord Chancellor has said to your Lordships this afternoon.
To take another example, we understand that not only will the noble and learned Lord the Lord Chief Justice depart from your Lordships' House, but the noble and learned Lord the Lord Chancellor will disappear altogether. Who will guarantee that Ministers will not criticise judges, following judgments that displease them? That already happens from time to time, but I am sure that the restraining hand of the noble and learned Lord the Lord Chancellor being in the Cabinet has meant that there are far fewer examples than there would otherwise have been.
It is not too late for the Government to hold a pre-legislative review. The agreement reached between the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Chief Justice could form the basis of such a review.
19 In saying all that, I am in no way criticising the noble and learned Lord the Lord Chief Justice for what he has done. The noble and learned Lord was not given the option of a pre-legislative public review. He had to do the best he could in the circumstances in which he was placed. There can be no criticism of him whatever.
As to the scope of the agreement, it is vital to emphasise that, in the context of the whole Bill, it is fairly narrow. First, as the noble and learned Lord the Lord Chancellor said, it does not bind the legislature. Secondly, there is nothing in the agreement about the Supreme Court, which, of course, is not surprising. The noble and learned Lord the Lord Chief Justice is responsible for the judiciary in England and Wales. The scope of the Supreme Court runs much wider to the whole of the United Kingdom.
Thirdly, there is nothing in the agreement about the preservation of the rule of law. In this respect, the role of the Lord Chancellor in the Cabinet is vital. The Lord Chancellor is invariably a member of the Cabinet of jurisprudential distinction and is, of course, the head of the judiciary. He is a man—it might be a woman—who has attained the pinnacle of his career. He has nothing more to hope and nothing more to fear. In British politics there is no better figure to ensure that the rule of law is not overrun by political expediency. Why does the Prime Minister want to remove such a figure from the Cabinet? Noble Lords may find that the answer to that question does not pose a severe test to the intellect.
What of the removal of the Lord Chief Justice, the Master of the Rolls and the Lords of Appeal in Ordinary from your Lordships' House? I view this with alarm. The judiciary is one of the three great arms of the constitution. To deprive noble and learned Lords of their intimate involvement in the legislative process will be to isolate the judiciary in this country and to turn it into a mere political pressure group. Moreover, it is wholly illogical to remove the judiciary from the legislature without giving the same treatment to the executive.
As a party in opposition we are not against change, but it must be change which harmonises with our past. The present arrangements have existed for over 400 years. They have been tested by every generation and not found wanting. As I said in the debate on the gracious Speech, what is so special about 2004?

§ 3.31 p.m.

§ Lord Goodhart
My Lords, I start by repeating the thanks of the noble Lord, Lord Kingsland, for the opportunity given to myself as well as to the noble Lord to see in advance the draft documents which have been released today. Unlike the noble Lord, Lord Kingsland, I propose to say something about the terms of the agreement. The noble Lord's speech left me and, I suspect, every other Member of the House, absolutely in the dark about the views of the Conservative Party on the substance of the matter under debate.
20 Members on these Benches warmly welcome the Statement. We have long believed that it was wholly improper for judges to be appointed by a Cabinet Minister. Of course recent Lord Chancellors have been unquestionably impartial in making their appointments, but in the future there is a real and increasing risk that the appointments process will be politicised if things are left as they are.
We do not agree with all the proposals put forward by the Government. We are concerned, for example, about the make-up of the proposed judicial appointments commission. It may be that too high a proportion of the members are holders of judicial office; it will be seven out of 15 if we include the representatives of the lay magistracy and tribunal members. We shall raise that and other issues during our discussions in debate on the Bill.
However, we recognise the enormous constitutional importance of the concordat now arrived at between the noble and learned Lord the Lord Chancellor and the judiciary, represented by the noble and learned Lord, Lord Woolf. That concordat will get the new system off to a far better start than if the Government were seeking to force a new system on an unwilling judiciary. Therefore we shall not seek to unravel the agreement reached in the concordat.
This is not the time to go into the detail of the terms of the concordat, but we very much welcome the specific statutory duty on the Secretary of State to defend the independence of the judiciary. However, I have to say that that does not go far enough because the independence of the judiciary is useless if its powers are excluded or improperly restricted. A plain example of that is Clause 10 of the Asylum Bill now before the House of Commons which excludes judicial review of decisions in asylum cases. That is a constitutional abomination. Clause 10 is a threat to the integrity of the legal system. It is not just a question of the rights of asylum seekers; it is one of the powers of the High Court to review the decisions of inferior tribunals. That is a fundamental principle of our constitution. I believe that the noble and learned Lord the Lord Chancellor should have insisted that judicial review should be retained. I do not know whether he failed to object to Clause 10 or whether he objected and was overruled. Either way, the present system has failed. To make future failures less likely, the statutory duty of the Secretary of State must be extended to include not only the defence of the independence of the judiciary, but also the defence of the integrity of the legal system.
We must preserve not only the independence of the judiciary, but the independence of the legal profession. That means that if appointments to Queen's Counsel or an equivalent rank under another name are to continue, those appointments must also be independent of government. I should add that Schedule 5 to the Access to Justice Act 1999 gives the Lord Chancellor considerable powers over the rules of professional bodies. Those powers should either be transferred to the Lord Chief Justice or require his concurrence.
21 Let me finish by mentioning briefly two matters that need to be looked at in the longer term. First, the forthcoming Bill will be of the utmost constitutional importance. It will determine the relationship between the executive and the judiciary, but it is to be contained in an ordinary Act of Parliament which could be repealed by any other Act. In the past we have prided ourselves on our unwritten constitution, but that constitution is no longer unwritten; bits and pieces are scattered in various statutes, of which the constitutional reform Act will be one. They need to be brought together into a single, written constitution.
Secondly, it is time that we created a proper ministry of justice and brought responsibility for our substantive criminal law into the Lord Chancellor's Department or the Department for Constitutional Affairs, and out of the Home Office.
This is the beginning of a long debate which will resume at much greater length on 12 February and again in March when we have the Second Reading of the constitutional reform Bill. I have not yet seen the detailed proposals for the creation of the Supreme Court, so I cannot comment on them, but I believe that the concordat represents an important step forward towards what is a vital constitutional reform.

§ 3.37 p.m.

§ Lord Falconer of Thoroton
My Lords, I am grateful to both noble Lords for their thanks. It was right to keep them informed throughout the process. The noble Lord, Lord Goodhart, was correct to point out that, having listened to the noble Lord, Lord Kingsland, unfortunately we have no idea what the Conservative Party thinks about these proposals, so I shall not comment on that.
Like the noble Lord, Lord Goodhart, I welcome the fact that the noble and learned Lord the Lord Chief Justice is in his place this afternoon and I am glad that he will take the opportunity to set out in this House what he thinks of these proposals. There has been no element of secret negotiations here. The moment that an understanding was reached between us, we came straight to the House and explained the purpose. I am not sure what the noble Lord, Lord Kingsland, had in mind. Should we have detailed on the website precisely where we were in our correspondence? I do not think that even the noble Lord would suggest that.
I turn to the remainder of the remarks made by the noble Lord, Lord Kingsland. At the heart of the understanding between myself and the noble and learned Lord the Lord Chief Justice is the proposition that the Lord Chief Justice for England and Wales should become, in effect, the acknowledged leader of the judges. I can think of no other process that would more strongly embed the rule of law and ensure that the independence of the judiciary is guaranteed.
I am glad that the noble Lord, Lord Goodhart, has welcomed these proposals. He is right to say that they are of very considerable constitutional significance and, as my noble friend Lady Amos has said, there will be a chance to debate them before we reach the Bill itself. Turning to his remarks about a written 22 constitution, our constitution has always been based on the supremacy of Parliament. If a written constitution is set above Parliament then in effect that supremacy is lost. Of course some things should be set out in statute hut, like all other statutes, they should be subject to the will of Parliament. As regards Clause 10, I think that that should be debated on another day.

§ 3.39 p.m.

§ Lord Woolf
My Lords, I am most grateful to the House for allowing me extra time to respond on behalf of the judiciary to the Statement made by the noble and learned Lord the Secretary of State and Lord Chancellor. Before making my statement I consulted the Judges' Council, and the judiciary of the High Court and the Court of Appeal. It is therefore with their agreement that I welcome the Lord Chancellor's Statement and make these remarks.
After the Government announced on 12 June last that they were proposing to abolish the office of Lord Chancellor, the judiciary regarded it as of the greatest importance that if this were to happen there should be a new constitutional settlement, reflected in legislation, that would protect the administration of justice in England and Wales for the future.
A settlement responding to the proposed new situation would have to ensure: first, that the judges retain the confidence of the public; secondly, that the independence of the judiciary is maintained: thirdly, that the quality of the judiciary continues to be outstanding; fourthly, that there is an appropriate and harmonious relationship between the judiciary, Parliament and the Government; fifthly, that the resources essential to an effective and efficient court system are provided.
The arrangements just announced by the Secretary of State and Lord Chancellor are the result of detailed discussions between the noble and learned Lord and myself. If they are accepted by Parliament, their implementation will have my firm support.
If you compare what is announced with the response of the Judges' Council to the Government's consultation papers on constitutional reforms, you will find significant differences. However, the judiciary recognises that there is more than one way in which its objectives can be achieved. During the course of our discussions, the Lord Chancellor and I have been willing to accommodate the views of the other as long as they do not involve impinging upon the important principles that we each believe have to be secured by an agreement that safeguards the interests of the public.
I emphasise that what is announced is a package of proposals and I make it clear that the judiciary's endorsement is conditional on the proposals being implemented as a whole.
I shall explain shortly why the judiciary considers that the package of proposals is acceptable. Before I do so, it is important that I make clear that these proposals do not deal with all the issues which will have to be determined as a result of the proposed changes announced by the Government last year. The package of proposals about which I speak today deals 23 with the issues that arise as a consequence of the Lord Chancellor ceasing to be the head of the judiciary. Once there is no longer a Lord Chancellor who is head of the judiciary, it is vitally important to the administration of justice that there are provisions in the legislation which protect the judiciary in its task of providing justice for those who come before the courts. This, in the judgment of the judiciary, is what the present proposals achieve.
This package of proposals does not deal with other issues which have not, as yet, been the subject of discussion between myself and the noble and learned Lord—that is, the question of the creation of a new Supreme Court and the question of whether senior judges should continue to sit in this House, an issue to which the noble Lord, Lord Kingsland, referred. Nor does it cover the future of the silk system.
On a similar note, I should make clear that, in engaging in these discussions with the noble and learned Lord, I have not sought to address the question of whether the office of Lord Chancellor should indeed be abolished. It seems to the judiciary that that is a matter for Parliament.
Subject to these qualifications, I can say that the proposals are satisfactory because, first, the appointments commission will be wholly independent of the executive and appointed by a body that is equally independent. The commission will be qualified to appoint and promote our judiciary in the future. It will not be a commission dominated by the judiciary but there will be sufficient members who sit, full time, as judges to ensure that the commission benefits from their experience as to the qualities that judges must have. The sole criterion for making appointments will be merit, and it will be an important part of the commission's role to work out ways of increasing the diversity of those who apply for judicial appointments so that there will be a wider range of applicants from which to choose. A lay chair will be able to devote the time to this role that such an important post deserves. For appointments of a specialist nature, those who have the requisite expertise will be able to contribute to the selection process.
Secondly, the Secretary of State is to be involved in the appointments process to an extent necessary to meet his responsibilities to Parliament and the public, but his involvement is suitably restricted. He can ask for a proposed appointment to be reconsidered or for a different name to be submitted, but he cannot propose a candidate for appointment and he will have to identify why he considers that a particular candidate is not acceptable. I have accepted that it is not practical for the appointments commission to take on its responsibilities for the appointment of magistrates from its inception. Having discussed the matter with the Magistrates' Association, I have agreed that until the appointments commission is ready to do so, recommendations received from the existing advisory committees will be passed to me and that I will submit an approved list to the Secretary of State under a procedure mirroring that which will apply to the appointments commission.
24 Thirdly, the security of tenure of the judiciary is preserved. However, an important aspect of its independence is that members of the judiciary fulfil their responsibilities in a way that does not adversely affect the public's confidence in the judiciary. There must therefore be an appropriate system for dealing with complaints and discipline, and this the proposals contain. Again, the Secretary of State has a part to play in the system proposed and, again, his role is carefully limited so as to protect the independence of the judiciary. He will be answerable for the complaints system to Parliament; he can require a judicial investigation or review; but no judge can be removed or any other sanction imposed without the agreement of both the Secretary of State and the Lord Chief Justice of the day. Together they will consider the findings of the investigating judge or review body and agree whether the recommendations should be implemented. In addition, the administrative support for the disciplinary and complaint process will be provided by a separate section of the staff of the department working to an independent chief executive.
Fourthly, the Secretary of State, unlike the Lord Chancellor, will not be head of the judiciary. The previous position of the Lord Chancellor as president of the existing Supreme Court will pass to the Lord Chief Justice of the day, but the Lord Chief Justice will assume the new title of President of the Courts of England and Wales. The Lord Chief Justice will have the statutory responsibility and therefore the authority to speak on behalf of the judiciary on matters that concern the judiciary. The Secretary of State is, however, to continue to have a clear statutory responsibility to provide administrative support for the judiciary and the resources to enable it to perform its duties. This includes providing the Lord Chief Justice with a properly resourced staff and office.
Fifthly, the Judicial Studies Board is to continue to be independent of the executive.
Sixthly, as to resources, the judiciary is to have, for the first time, non-executive membership of the boards of both the department and the Unified Courts Administration. This should lead to a closer involvement of the judiciary in the decision-making process.
Seventhly, in addition to the proposed specific duty on the Secretary of State for Constitutional Affairs to defend and uphold the continuing independence of the judiciary, there will be a general statutory duty on the Government, all those involved in the administration of justice and all those involved in the appointment of judges to respect and maintain judicial independence.
In agreeing the proposals, the judiciary has regarded as its primary responsibility, not the protection of its own interests but the protection of the independence of the justice system for the benefit of the public. I urge your Lordships to study the proposals, the details of which have been placed in the Library. If you do, I hope that you will agree with the judiciary that this is a package which will contribute to achieving the new 25 constitutional settlement that the abolition of the Lord Chancellor requires. If you agree, I am sure that you will endorse the judiciary's view.
In lending my support to the proposals as a whole, I acknowledge that the noble and learned Lord has been commendably prepared to listen and respond to the proper concerns of the judiciary. An important consequence is that the close working relationship—or, as it is sometimes described, the partnership—between his department, the Court Service and the judiciary is more likely to be preserved. That close working relationship is a special quality of our justice system, which, in the interests of the public, it is important to preserve. I thank your Lordships.

§ Lord Falconer of Thoroton
My Lords, I am grateful to the noble and learned Lord the Lord Chief Justice for his endorsement of the proposals. I pay tribute to him for the work he has done in the discussions he has had with me and for the leadership he has provided to the judges. I thoroughly agree with his statement that, during the course of the discussions, both the noble and learned Lord and I have accommodated each other's views in many areas, because both of us believe that the proposals provide an enduring basis for a high quality, independent judiciary and a proper partnership between the executive and the judiciary.

§ Lord Ackner
My Lords, I have two questions for the noble and learned Lord the Lord Chancellor. The first relates to the paper dealing with appointments. The Government suggested in their paper that they should, retain the policy relating to the appointment of the judiciary". Is it now accepted that that was wrong? It would amount to the government of the day having the ability to dictate to the new commission how it performed its role.
My second question relates to deployment. It is suggested that only the deployment of individual judges is left to the judiciary. I submit to your Lordships that that is wrong. Deployment is part of the process that supports the independence of the judiciary. There was a recent suggestion from the executive that Hampshire should be removed from part of the western circuit. There was correspondence in the Times, to which I was party. Ultimately a settlement was reached. The Lord Chancellor agreed to consider the matter several years hence.
If one looks at a long judgment by the Chief Justice of Canada considering what is comprised in the independence of the judiciary, deployment was very much one of the points that he emphasised. For the Secretary of State to be in a position to say that a particular judge who perhaps has not pleased him should be sent off some part of the country that he would not wish to be in would clearly be wrong. Why is general deployment not accepted as the responsibility of the Lord Chief Justice?

§ Lord Falconer of Thoroton
My Lords, on the first question about criteria for appointment, it is made clear in the document—and indeed in my remarks— 26 that the sole criterion for the appointment of judges will be merit. That does not mean that there are not other factors we would like to see promoted, for example, in relation to diversity, but there is no dilution of the principle. It will be enshrined in statute that merit is the principle.
The second question was about deployment. I thoroughly agree with the noble and learned Lord, Lord Ackner, that there should not be any question of a government Minister or official being able to say to or about an individual judge that he or she should sit there rather than here. But there are plainly issues for the executive in relation to wider issues of administration; for example, how many judges should be present during crime or family trials. Equally, there are significant issues for the executive in relation to how regional areas of court administration should be broken up.
I agree with the noble and learned Lord about individual deployment, but I do not accept that there is not a role for the executive in the wider issue.

Lord Morris of Aberavon
My Lords, I welcome the broad thrust of the Lord Chancellor's Statement and that of the Lord Chief Justice in entrenching the judiciary's independence and the independent machinery for its appointment. I am grateful to both noble and learned Lords for their careful explanation of their position.
I declare an interest as a member or chairman of three of the Lord Chancellor's county advisory committees on the appointment of justices. Will the Lord Chancellor state that there is no diminution in the role of the advisory committees, which are essentially the best judges of local needs? In no way are they to be regarded as agents of a government department, whatever its name.

§ Lord Falconer of Thoroton
My Lords, I am grateful to my noble and learned friend for his welcome of the proposals. I accept what he says about advisory committees: there is no intention of diluting their importance in the appointment of magistrates. Equally, I fully accept that the local knowledge they provide is vital and that it is in no way acting as the agent of central government that they do so.

§ Lord Howe of Aberavon
My Lords, perhaps I may express a more anxious response, contrary to the fact that, as the Lord Chancellor knows, I have been prepared to look with favour on some aspects of what is in prospect. How far can we be sure that this increasingly complex future will achieve with as much confidence the guaranteed independence of the judiciary to which the noble Lord, Lord Goodhart, paid tribute, in relation to the conduct of Lord Chancellors in recent generations?
Does not that independence depend on, more than anything else, a network of conventions that have been built up and observed with increasing good faith over the years? Is not the keystone of that arch of conventions the existence and presence of the Lord Chancellor? Do not all the changes that we have yet to 27 consider in detail flow, as has been said already many times, from the need to substitute for the existing structure of the constitution that has served us so well in so many respects?
Of course it needs some reform, but the Lord Chancellor speaks of the proposals giving us openness and transparency. As I listen to the chronicle of clauses and subsections of the agreements sketched out, with the utmost good faith, I am sure, of the Lord Chief Justice, I worry that it may achieve exactly the opposite. How many clauses in how long a Bill will this produce? How many sets of statutory instruments will this produce? How many additional public servants in the network of the Department for Constitutional Affairs will be produced? How will they reproduce the good faith identified by the noble and learned Lord, Lord Morris of Aberavon, in those who serve the existing advisory committees?
Is there not a great fear that the attempts to reproduce the simplicity and transparency of the old system will land us in a network of complexity and obscurity that will fail to achieve the purpose that we all share?

§ Lord Falconer of Thoroton
My Lords, I respect the noble and learned Lord's views, but I believe that he is wrong. In relation to many of the matters described in the Statement I made today and the Statement by the Lord Chief Justice, we reflect what is in effect already happening. For example, in relation to judicial discipline, there are already arrangements in existence between the Lord Chancellor's Department and the Lord Chief Justice that effectively ensure that no significant disciplining will take place without the concurrence of the Lord Chief Justice.
It is right that those arrangements now become much more open. It is also right that the leader of the judiciary should be the person appointed as the head of the judiciary in England and Wales and carries that respect. In the long term, I am sure that making these arrangements open and giving the Lord Chief Justice the title that he genuinely deserves will make the position stronger rather than weaker.

§ 4 p.m.

§ Lord Davies of Coity
My Lords, although I am not a member of the legal fraternity, I certainly understand what my noble and learned friend the Lord Chancellor has delivered to the House today. However, I have a question about the extension of the independence between the judiciary and the legislative process—the executive. I understand that currently, when the law is not implicit or is not clear, judges make judgments about what they believe Parliament intends. If the independence is to be extended, will that role continue?

§ Lord Falconer of Thoroton
Of course, my Lords. It is for judges to interpret the law in accordance with the law and none of these proposals affects that one jot. It is intended that there will be no executive interference 28 at all in judges making decisions about what the law is. That frequently occurs and if a law is not spelt out, it is for judges to interpret in accordance with the law.

§ Lord Waddington
My Lords, would the noble and learned Lord not agree that it all amounts to this: following the abolition of the post of Lord Chancellor, a Bill will be introduced to guarantee the independence of the judiciary which, until the decision to abolish that post, was never thought to be in doubt?

§ Lord Falconer of Thoroton
My Lords, the independence of the judiciary was never thought to be in doubt in this country because, whether from the point of view of judges or the Government, it is a fully accepted part of our constitution. The abolition of the Lord Chancellor makes it possible for the head of the judiciary to become the Lord Chief Justice and for the Lord Chancellor, in his ministerial functions, to concentrate on being a Minister. There is no doubt that the proposals that we have advanced today ensure and embed judicial independence.

§ Lord Borrie
My Lords, your Lordships will have noticed the vital qualification made in the Statement by the noble and learned Lord the Lord Chief Justice that he and his judicial colleagues accept the Statement on the basis of an assumption that the office of Lord Chancellor will be abolished. Rightly and properly however, they have taken no view about whether that office should be abolished. That reminded me and no doubt many of your Lordships of the debate a couple of weeks ago on the Speakership, which was also based on an assumption in the report by the Select Committee that we needed to elect a Speaker because the office of Lord Chancellor would be abolished. Again, it was an assumption.
When I listened to the lengthy part of the Statement today by my noble and learned friend the Lord Chancellor, it occurred to me that the detail about how judicial appointments should be made in future—by an independent judicial appointments committee taking an important role—is an evolutionary development of the advisory commission that his predecessor, the noble and learned Lord, Lord Irvine, initiated some years ago. I welcome that detail and the changes from the White Paper, including that the Permanent Secretary of the Lord Chancellor's Department will not be the chairman of the panel making the appointments but that it will be Dame Rennie Fritchie.
Could not all of these beneficial changes to ensure improvements in the appointments procedure be done without the abolition of the office of Lord Chancellor? We should bear in mind that we must note the disadvantages of having a Minister in the Cabinet—the Secretary of State for Constitutional Affairs—who may not in future be a lawyer, with a much lower order of precedence compared with that of the Lord Chancellor in the past. That is the disadvantage and deficiency compared with the positive points that have 29 been made. The detail could well have been attached to the Lord Chancellor's office rather than abolishing that office.

§ Lord Falconer of Thoroton
My Lords, the noble Lord raises the political question in a nutshell. Do we think that the arrangements are stronger if the Lord Chancellor's ministerial functions are performed by a Minister and the head of the judiciary is what most people in England and Wales already regard as the head of the judiciary—the Lord Chief Justice? Or, should they be one person? We believe that a separation should occur because it would enhance the role of the Minister and place the Lord Chief Justice in the position that he should be in as far as the judiciary of England and Wales is concerned.

§ Lord Maclennan of Rogart
My Lords, I recognise and support the direction of the reforms and, in most of the detail, acknowledge the force of the case. I also noticed, as other noble Lords may have, that the Lord Chancellor spoke about the expectation that this would be a stable package, "embedded in statute", with respect to the retention of judicial independence and the entrenchment of the relationship between the department and the judiciary. However, in answer to my noble friend Lord Goodhart, the Lord Chancellor made it clear that that could happen only as long as it followed the will of Parliament. In other words, there is no constitutional underpinning for these proposals at all that is in any way different from other statutory legislation.
In those circumstances, is it not appropriate now to consider whether that basic fundament of the English constitution is not due for update? The evidence has been before us in this Parliament—my noble friend spoke about the asylum Bill, but there are other examples of fundamental rights having been swept away by the will of Parliament. Should we not consider that there are certain constitutional issues of such vital importance. including the independence of the judiciary, that we need to entrench them by other constitutional means, such as requiring a higher majority than for ordinary legislation or popular backing through a referendum?

§ Lord Falconer of Thoroton
My Lords, the noble Lord said that these are matters of great constitutional importance. I agree. He said that the independence of the judiciary is a fundament of our constitution—I entirely agree. Another fundament of our constitution is the supremacy of Parliament. In effect, he proposes that some provisions that Parliament passes cannot be changed unless special additional measures are gone through. I believe in the supremacy of Parliament without procedurally entrenched provisions. That is the right way forward, so I do not agree that we should change that part of our constitutional settlement. I do not believe for one moment that things such as the independence of the judiciary would ever be threatened by our Parliament.

§ Lord Donaldson of Lymington
My Lords, I join in the wholehearted welcome that has been given to this concordat and I congratulate both the noble and learned Lord who speaks for the Government and the other noble and learned Lord who speaks for the judiciary on the efforts that they have made. However, I take up the point implicitly dealt with by the noble Lord, Lord Kingsland, and expressly dealt with by the noble Lord, Lord Goodhart—about protection for the rule of law. The Lord Chancellor, when he referred to Clause 10 of the asylum Bill, said, "That is for another day". I respectfully disagree. It is something that all of your Lordships should have a look at now, although the legislation is still in the House of Commons. It provides that there should be no supervisory jurisdiction of the Immigration Appeal Tribunal by any court in the land.
If that were not sufficient, the Bill goes on to provide that, in particular, there should be no basis of complaint against the tribunal if it exceeds its jurisdiction, or, even more breathtaking, if it acts contrary to natural justice. That is in the Bill. If we are going down that road, it seems very relevant to the concordat, or to legislation connected with the concordat, that there should be some entrenchment.
I cannot help drawing attention to the fact that more than 100 Members of this House and of the Commons, of all political persuasions, have recently supported an amicus brief to the Supreme Court of the United States, supporting claims that that court should assert the supremacy of the civil courts over the military tribunal that exists in Guantanamo Bay. What exactly is the difference in principle between that and the situation where we have a new special tribunal and no other court whatever can look at its activities? We do not want a Guantanamo Bay in this country. I think. with respect, that the noble and learned Lord ought to address not Clause 10 itself, but the philosophy that lies behind it, and address it now.

§ Lord Falconer of Thoroton
My Lords, I am grateful to the noble and learned Lord for welcoming the package. As he knows, Clause 10 allows decisions of the Home Office to be looked at by a single appeal tribunal. That appeal tribunal would be presided over—not in every case, but administratively—by a High Court judge. If people object to the conclusion of that tribunal, they can apply again to the tribunal and a judge, properly appointed, will consider it. I believe that that is sufficient judicial consideration of the rightness or wrongness of the view.
The noble and learned Lord is shaking his head. However, Parliament, and in particular this House, will get an opportunity to consider it in detail.

§ The Earl of Erroll
My Lords—

§ Lord Phillips of Sudbury
My Lords—

§ Lord Grocott
My Lords, it is time to move to the next business.