§ [Relevant documents: Judicial appointments and a Supreme Court (court of final appeal)—First Report from the Constitutional Affairs Committee, Session 2003–04, HC 48-I and-II, and the Government's response thereto, Cm 6150.]
§ Motion made, and Question proposed, That the sitting be now adjourned.—[Jim Fitzpatrick.]2.30 pm
§ Mr. A. J. Beith(Berwick-upon-Tweed) (LD):It is a great pleasure to serve under your chairmanship, Mr. Chidgey.
§ I pay tribute to my colleagues on the Select Committee on Constitutional Affairs for the work that they do, and to our tremendously hard-working staff and special advisers. The subject of the debate is the Committee's report on the Government's proposals for judicial appointments and a supreme court. It was published on 10 February, and much has happened since, some of it influenced by what the Committee said. The Constitutional Reform Bill was published later in February, and the Government produced their response to our report in April.
§ In March, the House of Lords decided to remit the Bill to a Select Committee. In the course of that debate, several noble Lords referred to the Committee's stated view that such fundamental changes in our judiciary should be dealt with in a measured way. We argued that the Bill should be treated as a draft Bill and dealt with over two Sessions. Our objective was met by a combination of the Select Committee procedure in the Lords and agreement that there should be a carry-over motion to allow the Bill to come to the Commons early in the next Session. I thought all along that that would be a sensible solution, and I am glad it that it was adopted. I did not always have the full endorsement of my Front-Bench colleagues in that matter, but one cannot always have that, especially when one is Chairman of a Select Committee.
§ The draft nature of the Government's proposals is emphasised by their willingness to table substantial amendments, which I welcome. Some of those amendments arise from what became known as the concordat—the unprecedented agreement between the Lord Chancellor and the Lord Chief Justice through which the judges sought to safeguard judicial independence following the planned abolition of the office of Lord Chancellor. I rather admire the Lord Chief Justice's alacrity in involving himself in the matter; his negotiating skills are also admirable. The concordat is an unusual and remarkable feature of the processes that have been used to deal with this matter.
§ It is not my purpose to rehearse the arguments for and against change, although other hon. Members may want to do so. I broadly support the changes, although members of the Committee hold a range of views about 500WH them. In almost all our findings, we agreed unanimously on the issues that need to be resolved and on the care that needs to be taken over so fundamental a change to a judicial system that is internationally renowned for its probity and independence. I do not intend to dwell on the profoundly unsatisfactory way in which the proposals emerged from a Cabinet reshuffle without any of the consultation and preparation that should have preceded the announcement of such major changes. The Government's embarrassment at announcing the abolition of the Lord Chancellor at 6 pm only to find that he had to be resurrected in time to sit on the Woolsack the following morning is well enough remembered.
§ I shall concentrate on how the proposals have since evolved and on important issues that still need to be sorted out if the judiciary is to remain independent and be seen to be independent. I begin with the creation of a judicial appointment commission, a proposal that the Committee had already explored in a report on the Judicial Appointments Board for Scotland. The proposal has gained much more widespread acceptance than first seemed likely, although it is has evolved into a proposal for three or even four distinct systems: one for supreme court judges; one for senior judges; a continuing, if only temporarily, role for the Secretary of State in appointing magistrates; and the judicial appointment commission, which will handle the bulk of the main judicial appointments above the magistracy and district judge level.
§ A separate appointments system for the supreme court is essential because it would cover all three jurisdictions of the United Kingdom whereas the judicial appointment commission that would be set up under the Bill is an England and Wales body. It is clear that anxieties in the judiciary have led to a stronger role for the judges under the chairmanship of the Lord Chief Justice in appointing Appeal Court judges and other senior judges. The commission will have a lay chairman, but not an inbuilt lay majority. It is extremely rare for the Constitutional Affairs Committee to hold a vote, and, thankfully, even more rare for the Chairman to call a vote and then be defeated, but that is what happened when the Committee took the decisive view that the Chairman should be a judge. The Government took a different view, and I agree with them.
§ The Committee strongly believed that the commission needed to give leadership in implementing strategies to widen the field of applicants for judicial office. We also recommended that the commission, not the Government, should define "merit"—the key criterion for judicial appointment. I welcome the fact that the Government have accepted both those recommendations. Concerns remain about some of the work done by the Commission for Judicial Appointments—a rather confusingly named body in the present context—but it has done much valuable work in auditing and monitoring the appointments process. It is not clear how successfully that work will be done in future, given that the new judicial appointment commission is hardly the proper body to audit its own activities—nor, for that matter, is the Department for Constitutional Affairs, which is part of the Executive, the proper body. There seems to be a gap, and we need to find a way to fill it.501WH
Some of the concerns voiced by the judiciary about changes to the appointments system were associated with a wider concern about the loss of the office of Lord Chancellor, who was a voice for the judiciary in Cabinet. It is a tribute to recent Lord Chancellors that the office is now seen in some way as being above politics. That was hardly a characteristic of some of the fiercely party political Lord Chancellors of the past. However, the fact that the office is so much praised at the point of its disappearance is a lesson for the Government, who underestimated the extent of the anxiety that abolition of the office would create. That anxiety is summed up in paragraphs 13 and 14 of our report. Paragraph 13 states:
Whoever carries out the functions of the office of Lord Chancellor will be in charge of the Court Service and will play a central role in the administration of justice. Part of that role is the protection of the judiciary from political pressure in Cabinet and, when necessary, in public. There is a radical difference between on the one hand a Lord Chancellor, who as a judge is bound by a judicial oath, who has a special constitutional importance enjoyed by no other member of the Cabinet and who is usually at the end of his career (and thus without the temptations associated with possible advancement) and on the other hand a minister who is a full-time politician, who is not bound by any judicial oath and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion.
I quote that paragraph in full because it sums up many of our anxieties about the post of Secretary of State for Constitutional Affairs in relation to the judiciary, and it expresses a view that is widely held among the judiciary.
§ The anxiety has in part been addressed by transferring some of the Lord Chancellor's functions directly to the Lord Chief Justice. However, that does not deal with all the concerns—and they tend to increase every time that the Home Secretary makes a speech, particularly when he tells the Police Federation, "We only want judges who help us," or makes other fairly inflammatory comments whenever he loses a court case. The Committee suggests that the post of Lord Chancellor should remain at least until the reforms have settled down. Others have suggested that the Attorney-General take on some of the Lord Chancellor's functions, as is the practice in some Commonwealth countries whose systems are based on ours. The Government cannot ignore those concerns. Their objective is to demonstrate that the judiciary is wholly independent of the Executive and the legislature, but it would be a failed reform if it generated more anxiety about judicial independence than exists now.
§ The proposed supreme court is not a supreme court in the American sense, but a replacement for the Law Lords, whose place as part of the legislature would be seen as inappropriate in any constitution that we might recommend to a new democracy. The Committee drew attention to several features of the proposals that had not been thought through. For example, the original proposals seem to have been prepared without a proper understanding that the Law Lords are not an English court. They are the final court of appeal on civil matters for all three jurisdictions—Scotland, Northern Ireland, and England and Wales—and they do not hear criminal cases from Scotland. Their judgments on Scots law cases are binding only in that jurisdiction. Those and other points about the Scottish position have now been addressed or are being addressed. The Committee's 502WH work helped to ensure that that was done, but we have not seen similar progress on the questions of the court's funding and the status and accountability of its officers.
§ At present, the Executive have no role in the funding of the Appellate Committee of the House of Lords or in the appointment of those who serve and administer the court. Funding is voted by Parliament as part of the House of Lords budget. Arrangements similar to those covering the House of Commons Commission's role seem to me to be the appropriate mechanism for the new court. If a Secretary of State is to present the budget, he will have a considerable potential power over the court—power of a kind that does not now exist in relation to the Appellate Committee of the House of Lords, the body that the supreme court will replace. It is also profoundly unsatisfactory that the Bill does not give the supreme court the power to appoint its own officers—for example, an administrator and a registrar. All those matters will be controlled by the Department for Constitutional Affairs, which will decide what posts are required, provide staff for them and have charge of the court's records That is not a satisfactory expression of independence for a court that decides disputes between the state and the citizen. It is not even good management practice, because the court's officers will serve two masters.
§ A further concern is that the supreme court will be expected to introduce a principle that does not operate in the House of Lords, namely that civil business should be self-financing solely from fees. In recent years, that policy has been applied in the English court system, but not, I believe, in Scotland. Lord Hope of Craighead estimated that, if applied, such a policy would cause an immediate 900 per cent. increase in fees, which is clearly unacceptable. Litigants would certainly prefer to stay with the current system if the alternative is an astronomical increase in fees.
§ There are also concerns about the appointment system for the supreme court. The Government's original proposal that two to five names should be submitted to the Secretary of State who would choose one has been changed to one preferred by the majority of the Committee namely, that one name should be recommended, which the Secretary of State could reject or refer back if he had good reason. Without that change, the fear of political interference would hang over the appointment system and the supreme court. I therefore welcome the Government's change of view.
§ The Committee also recommended that the Government should not be in a position to pick and choose who of the supreme court judges can be made a life peer on retirement. That is a dangerous power of patronage, which we do not want hanging over the court, and we believe that it should be all or none. The Government suggest that it be all—that every supreme court judge should be made a Member of the House of Lords on retirement—but, of course, reform of the House of Lords may determine the issue differently, and the final answer might be none. None the less, I think that the Government accept the all-or-nothing principle that we set out.
§ Mr. Hilton Dawson(Lancaster and Wyre) (Lab): One of our recommendations was that, in line with most other public service appointments, vacancies in the new court should be publicised and open to application. 503WH Perhaps that recommendation was so mild that the right hon. Gentleman has not paused to consider it, but is not it extraordinary that a Government who are so committed to equal opportunities have rejected that proposal?
§ Mr. Beith: The hon. Gentleman rightly draws attention to one of the Committee's recommendations that I have not listed; there are so many that I will not have time to mention them all. The only argument against that recommendation that carries any weight is that the pool for such positions will be small—perhaps comprising only about 50 candidates—but that is not reason enough to reject it. In our evidence sessions we discussed the possibility that lawyers who are currently in academic posts and who have great knowledge of areas in which the court will make legal interpretations would be appropriate candidates, but that they might not be seen as such unless there was an open application process. The Government should reconsider that issue.
Accommodation might be seen as a secondary matter, but it has proved crucial to how the court will be launched and how it will initially be viewed. The Committee had definite views about the need for the court to be housed in quality accommodation. We said in our report:
In the nineteenth century the great reform of the court system involved the removal of the courts from Westminster Hall",
next to which this Chamber is located, and which had been
their historic home for centuries, to the Royal Courts of Justice in the Strand. The new court of final appeal for the United Kingdom requires a building which is functionally effective, but which also reflects its authority and significance.
I think that that is generally accepted, but can such a building be found and made available in a reasonable period of time? What if it cannot? That consideration led to the recommendation at paragraph 111 of the report:
Delay in finding and making available such accommodation has raised the possibility that the new Court might continue to sit in the House of Lords. Given that the principle argument is that the highest court should be seen to be separate from the legislature, it seems perverse to implement the change in a way which leaves many of the same judges sitting in the House of Lords doing the same job in the same place, possibly with the same staff seconded by the House of Lords. If more time is needed to establish the Court as a distinct body, the timing of its introduction should be adjusted accordingly. Such an important change should not be rushed.
That seems pretty obvious to us, and that view was echoed by a number of witnesses, including Lord Bingham when he spoke to us again this week.
§ There have been difficulties. Lord Bingham and the judges believe that the two main courtrooms in Middlesex Guildhall, which is one of the candidates, are too much in the character of a court for a criminal trial and are not appropriate to the seminar style of a supreme court engaged in legal interpretation. The other courts in Middlesex Guildhall are not much different in scale or style from the Committee Rooms in the House of Lords that are used now, but Lord Bingham describes them as attics in a museum. Some might say the same of some of our Committee Rooms, but that is another story.
§ My view is that appropriate facilities could be created in Middlesex Guildhall or elsewhere, at least as a temporary court. However, the judges are 504WH understandably wary of temporary accommodation that might become permanent. If London cannot provide accommodation, why not try Edinburgh or Cardiff, or a major provincial city such as Newcastle? Until temporary or permanent accommodation can be found that is acceptable and viable for judges and court users, the court should not be brought into operation and the Law Lords should continue to sit in their present form under their present constitution. That should either be written into the Bill or be made clear in a ministerial statement. The commencement order should be worded, or at least implemented, on that basis. When the purpose of a reform is to change the perception of a court that is otherwise recognised to be doing its job satisfactorily and to be above any criticism on grounds of political bias, it makes no sense if the institution is replaced in a way that does not make the change apparent.
§ Vera Baird(Redcar) (Lab): Does the right hon. Gentleman, like I do, think that the Law Lords are acting as trade unionists in this argument? Lord Bingham is saying, "My lads are not going anywhere that is not at least as prestigious as the place that they have now." To refer to the point raised by my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson), perhaps advertising and widening the scope of membership of the Law Lords has been laid low as a negotiating ploy, because the Law Lords are utterly opposed to anybody other than themselves being eligible for membership. Does the right hon. Gentleman think that negotiation has been going on?
§ Mr. Beith: I would like to think not. Certainly, most of the interventions made through the Lord Chief Justice by the judiciary have led to positive improvements in the Bill. The Committee has been ready to support the judges when we felt that their independence ought to be safeguarded and in other areas. Of course, there comes a point where it is not down to the judges to say, "We will not have any of these buildings." I teased Lord Bingham with the thought that, if the judges persisted in ruling out a wide range of possibilities, some might suggest that he sounds like a pop star who refuses all the hotel suites the management have to offer. However, the judges made perfectly fair points about the way in which the court should be conducted and the fact that it needs to have decent facilities. They do not want to be in the House of Lords, of which some of them would be full Members and others not. Those are perfectly reasonable points but, at the end of the day, a decision will have to be made to make accommodation available, and the list cannot be endless.
§ Mr. Edward Garnier(Harborough) (Con): The former Solicitor-General, the hon. and learned Member for Dudley, North (Ross Cranston), and I have an interest in Middlesex Guildhall as we both sit there from time to time as Crown court recorders. It is a mistake to think of the accommodation problem in Middlesex Guildhall only from the point of view of the future supreme court. There are eight or seven Crown courts in that building, and nobody seems to have thought about what accommodation the Government will provide to replace the eight or seven Crown courts that will be lost if the supreme court is established there. There is plenty 505WH of work for those Crown courts to do, but where will they sit if and when the supreme court moves into that building?
§ Mr. Beith: The hon. and learned Gentleman is right. Middlesex Guildhall is a busy courthouse containing numerous courts sitting all the time. That is not the only problem that the Government have when they consider court accommodation. There is a desperate need for new facilities for the commercial court: we have quite inadequate commercial court facilities in London and the busy commercial court makes substantial export earnings for this country. A number of accommodation issues need resolving, and I hope that a reasonable solution can be found within a reasonable period. However, the Committee and I do not want a fundamental reform to be introduced in such a way that does not make it apparent that it has taken place. If the same people are continuing to sit in their Room in the House of Lords and the only thing that changes is that their judgments are no longer delivered in the Lords Chamber, the steps involved in the reform would not have been justified.
§ My last point concerns the judiciary's relationship with Parliament. One issue that came up quite a bit in our discussions was the disadvantages of withdrawing from Parliament the expertise that serving Law Lords can bring to debates on important matters. Although there are differing views about how important that expertise is and how readily other peers with substantial legal experience could fill the gap, it is clearly desirable—for that reason and several others—that communication between judges and Parliament can develop in ways that undermine neither the proper separation of the judiciary and Parliament. nor the proper independence of the judiciary from Parliament. On the basis of its own experience, the Committee believes that communication can develop in that way.
§ When I took on the chairmanship of the Committee, one of the first things I did was to go and see the Lord Chief Justice. We discussed ways of enabling judges readily to appear before the Committee, so that they could give us their advice on issues on which they were knowledgeable and experienced. We worked out appropriate arrangements, which have been wholly beneficial to the Committee. Senior judges and judges from other levels of the system have given evidence on a wide range of issues, including court practice and legal aid. They gave evidence when we were preparing our report on the Children and Family Court Advisory and Support Service, when they spoke of the courts' experience of dealing with problems in the service. We have benefited hugely from their advice and, incidentally, from that of visiting chief justices from other jurisdictions, who have also given us evidence.
§ Mr. Dominic Grieve(Beaconsfield) (Con): In view of the fact that it is possible for judges to give evidence to the Select Committee and to express sensible points of view without contaminating their independence or integrity, is it not a bit difficult to see why there is such an objection to their doing the same in the House of Lords?
§ Mr. Beith: The argument about their presence in the House of Lords does not derive from the way in which 506WH serving Law Lords carry out their responsibilities in that Chamber, because they are extremely careful. If a Law Lord comments on legislation during its passage and it then becomes an issue in court, he does not sit in the case. However, that judges have found ways of handling the situation properly and without compromising their integrity does not detract from the argument of principle. The judiciary and the legislature are not the same thing, and we would not recommend to any other country that some of their legislators should also be judges. In this country, the anomaly also persists at another level, because some Members of Parliament, including members of the Committee, sit as recorders—but that is another story.
§ Vera Baird: Is there not the extra factor that, since 2000, the Law Lords have taken a voluntary vow of silence in the Chamber on any issues on which they might adjudicate? Consequently, they cannot speak on precisely those issues on which they have the most expertise.
§ Mr. Beith: The hon. and learned Lady quite properly considers the issue from the other standpoint. The care with which the Law Lords limit their contributions to parliamentary debate places a limitation on the availability of their expertise. We should therefore seek that expertise in other ways.
§ Some argue that we should not go through with the changes, and that we should keep judges as legislators. People are entitled to that view, but the issue that the Committee has been considering is whether we can develop ways in which judges can communicate with Parliament if the changes go through. It has been suggested that Joint Committees of both Houses should be involved in the process, and my Committee is not the only one to which it would be appropriate in some circumstances for a judge to give relevant evidence. However, our for focus, on the constitution and legal affairs has made it easier for us to develop a working method and ground rules that have made judges comfortable with coming before us. I am optimistic that we can readily make progress on the issue if the reforms are carried through, as I expect they will be.
§ I emphasise that the reforms are fundamental. Nothing quite like this has been carried out in our system for hundreds of years. I support the reforms, but that does not blind me to the dangers involved in getting them wrong. That understanding has created a lot of common ground between people who have different points of view about the issue. It is important to take the opportunities presented by the Lords procedure, by subsequent discussion in the House and by the Select Committee report to deal with the concerns that I have raised and others that hon. Members will no doubt raise this afternoon.2.55 pm
§ Ross Cranston(Dudley, North) (Lab): We are all grateful to the right hon. Member for Berwick-upon-Tweed (Mr. Beith) for the leadership that he has given to the Constitutional Affairs Committee since it was established. The quality of the report is a demonstration of that. We should also thank the Clerk, Roger Phillips, and the staff, and our special advisers, Professor Le Sueur and Dr. Kate Malleson.507WH
§ I should declare my interests, as I always do when the Committee sits. I am a barrister and recorder. I should also declare a non-registerable interest: I was a member of the committee of the Commercial Bar Association, which submitted a quite detailed response to the Lord Chancellor's Department, or the Department for Constitutional Affairs, as it is now called, on this matter.
§ It is important to consider the constitutional background. Our system seems to me to work on a delicate balance between the three arms of government—the Executive, the Parliament and the judiciary. It is premised on the importance of trust and mutual respect between those three arms of government. We see that mutual respect set out in "Erskine May" in the various rules that determine whether we can comment on judicial decisions, such as the sub judice rule. There are rules about making disrespectful comments about judges or reflecting on a judge's character or motives. Those rules are for parliamentarians rather than for Ministers, and perhaps we should reflect more on them, because they are important.
§ In my previous guise, I argued several years ago that it was important for the courts to develop a stronger notion of judicial deference. In human rights decisions, the European Court of Human Rights developed the notion of a margin of appreciation, and when the Human Rights Act 1998 was passed, the courts in this country developed a counterpart doctrine involving a notion of discretionary judgment for Ministers. They have also developed notions that Governments are in the best position to assess pressing social need. Judicial deference is important if we are to maintain the delicate balance that I referred to.
§ Mutual trust and respect come out of the knowledge in each branch of government of what the other branches are doing. In many areas of life, ignorance breeds suspicion, which is why when some of the Law Lords who were not in favour of the change came before the Committee and said that they learned a great deal from, for example, sitting in on debates in the other place, their words had a certain resonance for me. I appreciated the point.
§ If we are to establish a supreme court, we must think about other methods of enabling the three branches to gain knowledge and appreciation of what the others are involved in. For example, the other day the Chief Justice of New Zealand came before the Committee and said that the most effective Chief Justice of New Zealand had been a former Prime Minister of that country. He knew about how Government worked, and was therefore a more effective judge. Our academic adviser, Professor Le Sueur, has, in another guise, argued that the criticisms by Home Secretaries in the present and previous Governments might indicate that there are inadequate channels of formal communication between the different branches of government.
My second constitutional point, which I shall make more briefly, is that there is a need for democratic accountability. We have a system of representative democracy, but an aspect of that must be political input in, for instance, judicial appointments. On page 121 of volume II of our report, Professor Hazell, who was a
distinguished civil servant before entering academic life, writes:
Appointments to the judiciary are too important to be left to the judiciary alone, or to a Judicial Appointments Commission. The judges would be perceived to be a self-appointing oligarchy, especially if the Commission was chaired by a senior judicial figure.
In considering the proposed changes, it is important that we maintain the principle that there should be democratic accountability. How that is achieved is a matter for argument, but the principle points to certain conclusions about, for example, the institutional arrangements for appointing judges.
§ Also important when considering the changes are what I would call contextual principles, such as the excellence of our current bench. There is no doubt that our courts and the decisions that they deliver are respected throughout the common law world. The other day, for example, the Chief Justice of New Zealand said that English decisions are still widely used and will continue to be so, despite the abolition of appeals to the Privy Council.
§ That respect is coupled with the importance of the merit principle in the appointment of judges. That was especially important in the Combar submission to the Department on the changes. We were concerned about maintaining the standing of the commercial court. More than half the litigants before the commercial court come from other jurisdictions; they do so because of the quality of the judges of that court. It is universally acknowledged that we must retain the merit principle and the excellence of our judiciary.
Secondly, we have a problem with diversity, which we set out in the report. The facts speak for themselves. Paragraph 134 points out:
Of the 12 Lords of Appeal in ordinary only one is a woman.
That has been true only since this year, when Dame Brenda Hale was appointed to the Appellate Committee of the House of Lords. The report also notes:
Of the five Heads of Division, only one is a woman",
Women make up only 7.9 per cent. of Lord Justices of Appeal and 5.7 per cent. of High Court Judges
There are no ethnic minority judges sitting in the High Court
and above. The consultation paper suggests that building a wider recruitment base, for example, by drawing from solicitors and employed lawyers, will produce greater diversity. The Committee was persuaded of that argument, and there have been changes in the last couple of years. I commend the sterling work that Sir Colin Campbell and the other members of the Commission for Judicial Appointments have done to introduce modern methods of human relations into judicial appointments, but more has to be done.
§ Mr. David Drew(Stroud) (Lab/Co-op): Does my hon. and learned Friend also accept that there is a need to measure effectiveness? In my county, Gloucestershire, where we have recently had a change of circuit judge—I will not say whether the situation has got better or worse—the criminal justice board has made it clear to me that there has been a difference in the number of 509WH cases that are being seen, the effectiveness with which they are being dealt, and so on. It is vital that we have the best candidates possible so that we can select the most effective judges.
§ Ross Cranston: Yes, I do. It is acknowledged that judges these days must have a knowledge not only of the law, but of what is sometimes called case management. They have to be sufficiently knowledgeable of how to handle cases so that they are dealt with efficiently. That was the thrust of the Woolf reforms that were introduced. I should declare an interest in that respect, as I was one of Lord Woolf's consultants during that inquiry. Following the inquiry, judges have become much more aware that more needs to be done to introduce efficient methods for the courts' operation.
§ Mr. Dawson: Is not my hon. and learned Friend implying that we should be a lot more robust than we have been when considering merit? Perhaps we need to consider the full range of talents that a judge might need and confront whether we can select judges from a wider pool than we have done until now.
§ Ross Cranston: I take my hon. Friend's point. In a recent speech, either Baroness Hale of Richmond or somebody she quoted said that merit is in the eye of the beholder. However, I believe that there are objective criteria for measuring merit, especially in this area of judging. None the less, I accept the point, as does the Committee in its report, that the pool must be widened in order to increase diversity.
The third contextual point relates to judicial decision making. It has long been recognised that judges make decisions that have important social, economic and political ramifications. Lord Robson, a Law Lord in the first part of the 20th century, said that judges were
handling disputes that are legal in form but political in fact.
Lord Radcliffe—one of our outstanding judges—wrote some famous articles and delivered some famous speeches and lectures in which he spoke about the fairy tale that judges do not make law. More recently, Lord Browne-Wilkinson, who was a senior Law Lord, said in relation to the Human Rights Act 1998 that judges have to give
moral answers to moral questions.
This morning, I looked at the House of Lords website for the judgments delivered in May. There are a limited number of judgments on the site, but one can see the point illustrated that important social, economic and political decisions are being made. There was the Naomi Campbell case, which resulted in an important decision about privacy; an important decision about capital gains tax; a decision on whether the police were discriminating by refusing to accept as a constable a male-to-female transsexual; and a decision about whether someone in Northern Ireland was entitled to a funeral payment. I am not suggesting that those decisions are political in any way; they are made according to law, but every law undergraduate knows that there is a range of choices in judicial decision making. I used to quote the lecture that Lord Justice Scruton gave in 1923, which was published in the
Cambridge Law Journal, where he talked about the importance of class background and questioned whether a judge can be sure that he or she is acting impartially. Lord Scruton was an outstanding commercial lawyer who was important in influencing the drafters of the, uniform commercial code in the United States. A traditional judge, he was acknowledging that background factors can have an influence and that decisions themselves have important implications. Is the law on tax or social security going to be changed as a result of the decisions that I have mentioned? Will the Press Complaints Commission have to change its code of practice as a result of the Naomi Campbell decision? What about the implications of that other decision for the Gender Recognition Bill, which the House has just examined?
The right hon. Member for Berwick-upon-Tweed touched on my fourth point. There was no golden age during which political considerations were excluded. He was probably alluding to the famous statement by Lord Salisbury, who said:
There is no clearer statute in that unwritten law than the rule that party claims should always weigh very heavily in the disposal of the highest legal appointments.
He went on to say:
Within certain limits of intelligence, honesty and knowledge of the law, one man would make as good a judge as another, and a Tory mentality is ipso facto more trustworthy than a Liberal one.
I make no comment on that particular choice. Lord Halsbury made openly political appointments of Conservative MPs that would not be possible today. There is much more rigorous scrutiny and transparency, and one can imagine what the press would say if an appointing body or a Secretary of State for Constitutional Affairs made a number of appointments on overtly political grounds. That does not mean that those on the bench at present have no political background, either in local government or as active members of political parties. Some of them have, but they have been appointed on merit, and not because of their political background.
§ Mr. Garnier: To extend that point further, I dare say that the hon. and learned Gentleman would deprecate the blocking of the promotion to the higher ranks of the judiciary of Mr. Justice Donaldson, as he then was, by a Labour Government who disapproved of the way in which he had interpreted trade union relation laws—to the disadvantage, so they thought, of their trade union friends. The hon. and learned Gentleman is making a delightfully apolitical speech, but I trust that he will permit that slightly political note of dissension to enter into our discussion.
§ Ross Cranston: I take the view that appointments and promotions have to be made on merit. In the case that the hon. and learned Gentleman mentions, I would say—even though I might make myself unpopular with my hon. Friends—that the appointment should have been made.
§ I was coming to the point about the need to make imaginative and, in some cases, controversial appointments. Sir Michael Kerr was a great commercial judge who, in his memoirs, said that Morris Finer and Peter Pain, who turned out to be excellent judges, would not have become judges had not Elwyn-Jones been Lord 511WH Chancellor. I commend the former Lord Chancellor, Lord Mackay, on his imaginative appointments: he made Lord Bingham Lord Chief Justice and Lord Woolf Master of the Rolls, and he appointed Sir Steven Sedley and Sir John Laws.
In paragraph 123 of our report, we quote the Society of Black Lawyers, which makes a point about Lord Irvine of Lairg. The society said:
There has been some, but not substantial, improvement to the appointments' system for the ethnic minority. This has largely come about as a result of the personal attention to appointments … paid by the Lord Chancellor, Lord Irvine of Lairg … He actively encouraged ethnic minority applications".
Mr. Peter Herbert of the society is quoted in the report saying:
I think the issue with the Judicial Appointments Commission is that it will, generally speaking, appoint people who look like, sound like it.
In other words, we have to be cautious about the notion that we will solve some of these problems by appointing a commission. He went on to say, and I agree with him, that any commission has to have a diverse membership. He also said that there ought to be a special appeal process for when the commission gets something wrong. The Select Committee recommended that the commission make active efforts to promote diversity of the kind that were made by Lord Irvine of Lairg. I underline that this afternoon.
§ There has to be individual involvement, so that appointments can be imaginative and, in some cases, controversial. Committees can make appointments, but they will not necessarily do so in the most imaginative way. Typically, committees make safe appointments.
§ That leads me to certain conclusions about the way in which judges are appointed. We ought to have recommending commissions for appointments to the High Court and above; there has to be political involvement in a non-party sense; the Minister making the appointment must have a real choice; and it is necessary to avoid the dead hand of a committee. There is a notion that politicians have to be kept completely out of the process—that the political process is somehow corrupting and we as politicians cannot make decisions non-politically. There is a cult of the non-political, which we saw 10 years ago in the Institute for Public Policy Research report on the UK constitution, and which we see to some extent in the Judges' Council submission about the supreme court, which suggests that future appointments largely be made by the existing members of the supreme court. The, cult of the non-political is criticised by Professor Robert Stevens, who gave evidence to us, in his subsequent writings. He said unkindly, and possibly inaccurately, that there were elements of Mussolini's corporatism about it. That is a salutary warning. We have to be careful about saying that politics can be taken completely out of the process. The members of any appointment committee will come to the job with particular values: they may not be political, but they will have social values or non-party political assumptions, and so on.
Supreme court appointments are too important to be confined to the existing members of the supreme court.
We struck the right note in paragraph 57 of the report, where we talk about broad principles, saying that
the process must be transparent; it must have the confidence of the Government, the judiciary, the legal profession and the public—it must be clearly merit-based and the independence of the judges must be assured; it must allow for an increase in diversity, where possible.
However, we warn that
there must be some level of democratic accountability in the process.
I favour a recommending committee on supreme court appointments that puts forward a number of names, from which one will be chosen.
The right hon. Member for Berwick-upon-Tweed raised the issue of confirmation hearings, which we rejected in our report. Confirmation hearings have had a bad press, particularly as a result of what happened in the United States when Professor Robert Bork was nominated to the Supreme Court, but rejected, and Justice Clarence Thomas of the Supreme Court was subjected to great criticism before the Senate committee. We heard strong evidence from Sir Thomas Legg, the former permanent secretary to the Department, who was in favour of confirmation hearings. He has said:
The fact that MPs and peers are not competent to judge the professional qualities of the candidates is not relevant to this issue. The same will be true of the lay members of the judicial appointments commissions across the UK. Parliamentary confirmation will not bring the new Court into the political arena any more than it will be anyway, and may help to keep it out. The question is one of transparency and, above all, legitimacy—of which the new Supreme Court will need as much as it can get.
As the right hon. Gentleman said, senior judges have been open with us, and I think that they would say that we have treated them with respect. It is possible that that points in favour of greater involvement by the House in the appointment process.
§ I apologise for having talked for longer than I thought I would. I commend our report to the House. The debate is well attended, which shows the level of interest in the subject. We will continue to give attention to this important issue.3.20 pm
§ Mr. James Clappison(Hertsmere) (Con): I begin by declaring an interest as a non-practising member of the Bar.
§ I warmly congratulate the right hon. Member for Berwick-upon-Tweed (Mr. Beith) on the way in which he chaired and led the Select Committee on Constitutional Affairs, and I, too, thank others who have helped the Committee. I also congratulate him on the way in which he opened the debate. I strongly agree with the approach that he took, which he has taken throughout the proceedings of the Committee. He has made no secret of his general support for the proposals, but whether or not there is support for them, it is clear that they are here for us to examine. His attitude and that taken by the other members of the Committee has been to make positive contributions to improve matters as much as possible and to take a responsible approach to a subject of great importance.513WH
§ In advocating a responsible approach, I would not like that position to be thought of as implying approval of the course to which the Government have turned their hand. It is hard to think of a more deeply unnecessary set of reforms than the ones that the Government have proposed and that are being embodied in their Constitutional Reform Bill. To call them change for change's sake would be to flatter the rationale that lies behind them. The first point made by the Committee in its report is extremely important. It is that our present system for appeals works well and that it therefore enjoys the highest possible standing not only in this country, but throughout the world.
I do not believe that, in making their case, the advocates of reform or Ministers can point to a single example of a way in which the present arrangements do not work well in practice. They advance their case on the basis of perception. In their response to our report, we are told:
Having an independent Supreme Court will also increase public confidence in and understanding of the judicial system, as it will be demonstrably separate from the legislature.
I was not aware of a shortage of public confidence in the work of the House of Lords at present. I do not know whether it will improve by being so demonstrably separate from the legislature and whether such matters exercise my constituents.
§ Mr. Dawson: Is not the hon. Gentleman being extraordinarily complacent in his view of the current situation in this country? Given the levels of participation in our democratic society, is it not fair to say that there is a crisis in confidence in respect of some of our institutions? Is it not important for precisely that reason that we emphasise the split between the legislature and the judiciary?
§ Mr. Clappison: We are constantly hearing new rationales for the reform. It seems entirely novel to suggest that there is a link between participation and confidence in democracy and the existence of an appellate court in the House of Lords.
§ Peter Bottomley(Worthing, West) (Con): Let us consider the issue the other way around. No one has argued that changes to the judicial role of the House of Lords meant that the turnout came down to 59 per cent. at the general election. We must search in other areas for an explanation of that.
§ Mr. Clappison: As my hon. Friend rightly said, the House of Lords is one of the few institutions in this country in which there is demonstrable public confidence and which works well.
§ Vera Baird: I agreed with my hon. and learned Friend the Member for Dudley, North (Ross Cranston) when he said that there is widespread confidence among other judicial systems in the House of Lords, and that will not change because it is detached from the legislature. I am less sure whether there is widespread public confidence in it. To start with, I am not sure that the public actually understand who in the House of Lords decides these 514WH cases. They might think that they are decided by retired trade union leaders and people who have sold curry for a lifetime who have been given peerages. People simply do not know.
§ Mr. Clappison: Whether or not that is so, the hon. and learned Lady makes an important point. I understand her point of view, but given the quality of certain recent appointments to the House of Lords, I do not know whether she thinks that the institution will be improved by the proposed change in the way in which Law Lords exercise their responsibilities and participate in the House of Lords.
§ I noticed that, when the hon. and learned Member for Dudley, North (Ross Cranston) criticised the House of Lords, the most recent set of complaints that he could find went back to 1896 and Lord Salisbury. The hon. and learned Gentleman will know that the present arrangements of the House of Lords have been in place since 1878. It seems a bit late in the day to discover that they undermine the confidence of the public, but the Government are astute at discovering constitutional threats that no one else can see. After all, the reform is part of a package of reforms that came about as a result of the abolition of the office of the Lord Chancellor.
§ In the Government's eyes, it is no defence of the post of Lord Chancellor or a great asset of that office that it has a continuous history, in a recognisably modern form, going back at least to the Reformation. I refer to the Reformation because I know that the Minister is keen to emphasise in his website that, although the office of Lord Chancellor dates back to 1066, there are very few similarities between the post-Norman conquest Chancellor and today's Lord Chancellor. I do not know whether Regenbald. the first Lord Chancellor in 1066, would recognise Lord Falconer, but it is at least certain that Lord Falconer' predecessor, Lord Irvine—a very distinguished Lord Chancellor—could see some similarities between his position and that of one of his predecessors, Cardinal Wolsey, to take us back to the Reformation. I accept the Minister's case if what he is saying is that that does not go back far enough. Perhaps he is prepared to argue that 500 years of history is not long enough for us to see how the office of Lord Chancellor will pan out.
§ I have a helpful comment about the Minister's website—and I declare an interest, because the present Lord Salisbury is a strong supporter of the Conservative party in Hertfordshire and does a lot to assist it, and Hatfield house is close to my constituency. I draw the Minister's attention to the fact that on his website, the Lord Chancellor of 1591, the first Lord Burghley, is described as William Lecit. I believe, with my schoolboy knowledge of history, that his name was Cecil, not Lecit. I do not think that Lord Salisbury would like to see his esteemed ancestor being called William Lecit on the Lord Chancellor's website. However, that is a small point.
§ As I understand the Minister's case—he will correct me if I am wrong—the reason for the abolition of the office of Lord Chancellor is that although nothing untoward has happened yet, there is a risk that that office will result in dangerous constitutional interference from the judiciary. I am more than happy to pay tribute to the way in which distinguished Lord Chancellors of all parties, including the present Lord Chancellor's 515WH predecessor, have discharged their responsibilities; they have upheld the highest standards. The hon. and learned Member for Dudley, North quoted the evidence that we received from the Society of Black Lawyers. His tribute to the forward thinking of the previous Lord Chancellor was well merited; the same is true of the House of Lords in its appellate capacity.
I agree with the views expressed by Lord Nicholls in another place that:
a new Supreme Court would be deprived of some of the advantages of the present arrangements. At present, the court of final appeal in this country is known throughout the common law … as, simply, the 'House of Lords', because of its long and distinguished history, and it is still a name to be conjured with. A new court would be just that—a new court and would be distinct and different from its predecessors. It would have to start from scratch, build up its own reputation under a new name, in a new place".—[Official Report, House of Lords, 12 February 2004; Vol. 657, c. 1228.]
I wholeheartedly concur. If there is any complacency in the process—the word was used earlier—it is the complacency of those who are removing an important part of our constitution from its previous home and running the risk of damaging its reputation. That is where the complacency lies, if any complacency there is.
§ One of the possible causes of damage to the standing of our highest court of appeal arises out of the question of where the new court is to be located. Given that, as the right hon. Member for Berwick-upon-Tweed rightly said, the rationale for creating a supreme court and removing the appellate court from the House of Lords is to separate it from the legislature and to have a new location for it, it is very important that the question of where it is to be located does not drag out into a debilitating affair that does a lot to damage to the standing of our highest court of appeal and might put a question mark over it that is currently not there.
§ Peter Bottomley: The location and name of the court are issues that matter, but what matters even more is that when the Government brought forward this proposal, they did not say that its inevitable consequence is that the costs of running the court, beyond the salaries of the judges, will go up two, three, five or nine times. So far as we know, the Government still intend that those who bring cakes before the court will have to pay those vastly increased fees. The one issue that does not seem to come in to the question of where the court will be located is the cost to those who will appear in front of it.
§ Mr. Clappison: My hon. Friend is right. I think that the Minister will have to answer some of the questions about the likely increase in cost when he responds.
§ If the Government are going to avoid the debilitating effect on the reputation of our highest court of appeal of prolonged discussion about where it will be located, they owe it to us to answer a few straightforward questions today. That there will be a new location for the court is central to the Government's rationale, and it is now becoming one of the most discussed features of this reform. The Minister should give us a few straight answers as to what the Government's latest thinking is on the location of the supreme court.
I specifically ask the Minister to tell us whether the Government will be prepared to consider an interim solution in which the new court continues to sit in the
Lords or in some other temporary home. That is one of the possibilities that has been canvassed to the Committee, so I think that he could tell us today whether it is a possibility as far as the Government are concerned or whether it is their intention that the court should not come into effect until a suitable building has been found as a permanent home. That is the prospect that seems to have been briefed to at least one newspaper. On 17 May,The Times quoted an official as saying:
An amendment is being drawn up which would say that the Court does not come into effect until a suitable building has been found. This could take several years—especially if a new building has to be built.
Can the Minister at least throw some light on what is happening and what the Government are planning?
§ Can the Minister also give us an assurance that there will be full consultation with the Law Lords? On Tuesday, we as a Committee had the privilege of taking evidence from Lord Bingham, as the right hon. Member for Berwick-upon-Tweed mentioned. Lord Bingham did not seem over-enamoured with the idea of a temporary solution.
If the final court of appeal ever moves from the House of Lords, there will have to be changes in its funding and administration because of the move and its removal from the parliamentary vote. I therefore urge the Minister to take full account of the following strong recommendation from the Committee:
The new court will require a completely new set of arrangements for its administration which recognise its absolute need for independence and its United Kingdom role.
It would be very strange if the court were removed from the House of Lords in order to give an appearance of independence from the legislature, but its funding and administration, which are important questions of fact rather than appearance, were transferred to the Executive.
§ On Tuesday, we heard very persuasive evidence about the desirability of budgetary and administrative independence from Professor Scott, an eminent academic authority in this area. Although I do not agree with the right hon. Member for Berwick-upon-Tweed about the need for a new court and the background to the proposal, as a new court is to be created, I strongly endorse what he says about the desirability of giving it as much authority as possible over its own operations in respect of its staffing and budget and of making it as administratively independent as is possible.
§ Mr. Grieve: Does my hon. Friend also agree that, to return to an earlier point, it is necessary to look at cost? There is not only the cost of the building that is moved into, but the annual administrative running costs. The public will need persuading about the value for money that they are getting. We know that there will be a chief executive, who I cannot believe will cost less than £100,000 a year; I suspect that the figure will be higher. That already constitutes almost two thirds of the annual running costs of £183,000, excluding judicial salaries, of the existing House of Lords.
§ Mr. Clappison: My hon. Friend is right. There is likely to be a substantial increase in cost—and it is a cost to both the taxpayer and to litigants. We all need to be 517WH aware of that. The point that I want to make to the Minister is that whatever budget the new court receives, it should have as much autonomy as possible over that budget and the decisions that are taken in respect of it. My hon. Friend is right to make the point that there will be a considerable expense for the taxpayer.
§ Peter Bottomley: Will my hon. Friend explain that the matter is not only about spending within the budget, but about ensuring that that budget can be set by the court and not set as part of a public spending round within a Department, where a permanent secretary has many other responsibilities?
§ Mr. Clappison: My hon. Friend is right. Again, that point was in accordance with the tenor of Professor Scott's evidence to the Committee on Tuesday.
§ I will briefly discuss the judicial appointment commission. The creation of such a commission has also been made necessary by the abolition of the role of Lord Chancellor. As far as I am concerned, the system of appointments under the Lord Chancellor worked well. As our report makes clear, the office of Lord Chancellor has produced judges who are highly regarded internationally and have the utmost integrity. Some of the comments that we heard about the old system were subjective and misplaced, and failed to take account of the high standards of appointment that were achieved under Lord Chancellors of all parties.
§ Vera Baird: If the hon. Gentleman thinks that the current appointments system is so perfect and that the comments to its discredit are so subjective, how does he explain the fact that only 5 per cent. of High Court judges and 7 per cent. of Court of Appeal judges are women?
§ Mr. Clappison: If the hon. and learned Lady can contain herself, she will hear the answer to that. The comment that I made about subjectivity deals with her point. She may have a different perception, but mine is that we have a high standard of appointment in this country and a high calibre of judge. As her hon. and learned Friend the Member for Dudley, North made clear, people are queuing up to bring their cases to this country because of the high calibre of its judiciary and its relatively high international standing. I did not say that the situation was perfect; there is always room for improvement. The question that she and her friends must consider, and perhaps be a little less complacent about, is whether the new system will produce as high a standard as we have been used to. I hope that the judicial appointment commission will at least aspire to maintain those standards.
§ When the Committee visited Edinburgh, I was heartened by what we learned about the Scottish experience and Scotland's operation of a judicial appointments commission, although the circumstances there are different from those in England. I invite the Minister to take into account the Committee's conclusion on the composition of the commission. It would be strange if leading members of the two branches of the legal profession were not included among the commission's members. The Government 518WH have accepted that in their response, and I also accept what they said in supporting the lay chair. I was one of those who argued in favour of the chair's being a judge, but they have made their decision and we must abide by it. The important thing is that the judicial appointment commission is seen to work satisfactorily.
§ I will briefly discuss the question of the criteria for appointment, because I know that other hon. Members wish to speak. Appointments to the judiciary should be made on merit and merit alone. This will disappoint the hon. and learned Member for Redcar (Vera Baird), but I do not believe that merit should be subordinated to any other considerations in respect of gender or personal characteristics. However, obstacles that are in the way of people of merit achieving judicial office should be examined carefully and removed. That certainly applies where such cases involve women. At the end of the day, appointments need to be made on merit.
§ Those are my views. I hope that I have not been too unfair to the Government, but it is hard to think of anything as unnecessary as those reforms. An old Chinese proverb says, "Do not lift up a stone to drop it on your own foot." It seems to me that the Government have blundered into a series of wholly unnecessary constitutional reforms, the rationale for which suddenly became apparent on the night of 13 June 2003, although the Minister has done his best to amplify it.
§ We are in this position thanks to the Government, but it is up to the Committee to produce constructive and positive ways of making the proposals work. They are important to the country, and it is incumbent on us to approach our job responsibly and to make them work as well as possible.3.40 pm
§ Mr. Hilton Dawson(Lancaster and Wyre) (Lab): I start with an apology: I have another commitment shortly after 4 pm, so I shall not be able to stay after that time. My apology is tempered by the fact that I could not resist taking part in the debate.
§ Like others, I pay tribute to the work of the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who leads the Select Committee on Constitutional Affairs extremely well and who presented the report with his customary aplomb. I pay tribute also to the Clerk and to the Committee's specialist advisers, who have helped tremendously. The report comes at a crucial time.
§ I was amazed at the speech of the hon. Member for Hertsmere (Mr. Clappison). The Conservative party may have a good grasp on one line of history, but it does not look very far into the future and it does not recognise some of the pressures of the present. I would say that the separation of powers is a strong democratic principle with a notable pedigree. It is something to which we should attend this afternoon.
§ Mr. Grieve: Will the hon. Gentleman say which of those countries that have a separation of powers has a model that commends itself to him in respect of the judiciary? One that springs to mind immediately—I am half French—is France. That country has a nominal separation of powers, but judges making difficult decisions have to use laptops rather than their main computers, because of their belief that the latter could be 519WH hacked into by the state's security service. I would be interested to know what model and what country he believes are particularly impressive
§ Mr. Dawson: This country does not need to model itself on any one country's approach. Members of the Constitutional Affairs Committee heard clear evidence about the desire of the new democracies in eastern Europe to model their constitutions on that fundamental principle. However, when people from those countries come to Great Britain, with our proud democratic traditions, they are confused about how we operate. If we are to support countries that are emerging from totalitarianism into democracy, we need to set a good example.
§ I am pleased that the Government had a fundamental change of mind. I vividly recall an earlier meeting with Lord Irvine of Lairg in which he strongly resisted the sort of approach set out by the Government. My only wish is for the Government to take a more radical approach to other democratic principles—notably the principle that all Members of Parliament should be elected. I look forward to seeing real progress on the reform of the House of Lords. It is important to recognise that many people in this country hold its institutions, including the Law Lords, in considerable esteem, and that is also true across the world. It would be a fatal mistake, however, to rely on the principle, "If it ain't broke, don't fix it." We need to look to the future.
§ We also need to build confidence and rebuild support among people in this country. We need to build an understanding of how systems operate, going beyond the mythology that has evolved around some of our institutions. We need to approach the change with great care and sensitivity, and to build on the tremendous work that has been done over centuries, rather than throw out what has been achieved.
§ I recognise that there could be great difficulty over the question of a home for the new supreme court. I can think of hardly anything more detrimental to public confidence in a supreme court than monstrous expenditure on an enormous building and huge institutional running costs. We plainly need a proper headquarters for the supreme court, with the distinction that the institution demands. However, the place also needs to be functional and efficient, and to command, in all respects, the support and respect of the public.
§ I hope that the Government will be pretty tough on the judiciary with respect to the future of this building. It is a matter of perception, and there cannot be any question of a supreme court remaining in the House of Lords. It would not do at all. The Government may need to take on the trade union issues, as they have so aptly been called.
§ Mr. Garnier: It seems to me that much of the discussion about the home of the new supreme court is about what its outside should look like, and about whether it should look like the Supreme Court building in Washington DC or some great temple of justice. Clearly, what is important is what will go on inside it and how it will work.
§ Has the hon. Gentleman, as a member of the Committee or a Member of the House, and as someone who lives and works at Westminster, taken the 520WH opportunity that is available to him to attend a case being heard by the Judicial Committee, to see what the Law Lords do? It is not very far away. That would enable him to be informed about what has to happen inside the great new temple of justice.
§ Mr. Dawson: No, I have not done that; it is a great lack in my understanding, and I shall make the not very considerable effort to make such a visit before the Bill comes to the Commons.
Finally, I want to talk about diversity. It is important to quote the words of Lady Justice Hale, the first female Law Lord to give evidence to the Committee:
there are many more very able, capable, independently minded people of integrity who could make a contribution as judges than the ones who are currently regarded as the obvious candidates under the present system.
I have already said that I deplore the Government's response to the Committee, in which they said that they do not believe that vacancies in the supreme court should be publicised or be open to application, as most other public service appointments are. I hope that they will rethink that approach, as it is not in line with so much other Government policy.
§ I am also extremely disappointed that the Government appear to rule out directly appointing non-practising lawyers. The Law Lords operate at the level of a second-tier court of appeal and deal with policy issues and social issues that go far beyond the first level of appeal. It is quite wrong to preclude from taking part in the work of the supreme court lawyers who have an academic background or have worked in other spheres rather than having been directly promoted through the various levels of judges.
§ I am disappointed that both the Government and the Committee ruled out the idea of introducing a system of career judges at lower levels. We should move to a system in which people have a clear career path to follow, and from which they can divert occasionally. Women, and also men, may want to take time out from their career to take up family or caring responsibilities. I really do not see why that should preclude their continuing on their career path very soon after they have taken a break from it.
§ We need to establish a judiciary that reflects society far more and that deals with the appalling statistics of the gross under-representation of women and ethnic minorities at all levels within it. It will be a fine day for this country when we begin to deal with that issue and make great progress on appointments to the supreme court.3.53 pm
§ Mr. Edward Garnier(Harborough) (Con): I do not want to follow too far the line taken by the hon. Member for Lancaster and Wyre (Mr. Dawson). However, I urge him, as I urged him in my intervention, to take the opportunity afforded by working here to go and watch the Judicial Committee at work. I also suggest that he jumps on the tube and travels two stops down the District line to Temple to watch the Court of Appeal at work. He will then be able to make an informed comparison between the work of the Court of Appeal, which is usually a three-judge court, with the work of the Judicial Committee. While the hon. Gentleman is in the 521WH royal courts of justice, he should have a look at the work done in the civil jurisdictions by single judges sitting in the High Court. That is worth doing. I do not make these suggestions out of a sense of condescension, but I urge members of the Committee, and Members of the House generally, to inform themselves of the work done by judges if they can. I know that they have many other things to do, but if they have a minute, it is worth popping into the law courts just to see what is going on. As we all know, there is a Crown court just across the road; indeed, there are seven or eight Crown courts in Middlesex Guildhall. Again, it is worth having a look. When I did the job that my hon. Friend the Member for Beaconsfield (Mr. Grieve) now does, I used to urge my hon. Friends to go to their local magistrates court to see how the administration of justice worked.
§ Mr. Dawson: I appreciate the hon. and learned Gentleman's good advice, and I take it in the way in which I am sure it is meant. Those of us who have spent many years preparing social inquiry reports have a lot of experience of magistrates courts and Crown courts.
§ Mr. Garnier: I am sure that that is true. The great thing about the House of Commons is that it brings together people from diverse backgrounds, professions and occupations. I am sure that the Committee is enriched by having both lawyers and non-lawyers among its members.
§ Diversity was mentioned earlier. The hon. and learned Member for Redcar (Vera Baird) is a classic example of someone who would probably be on the High Court bench today had she not become a Member of Parliament. There have been plenty of suggestions that her practice and experience would have taken her in that direction, but she made a career choice to come to the House of Commons, as we all did. Obviously, her decision has precluded her from taking on the role of judge; it has taken an excellent lawyer, who happens to be a woman, away from the bench, albeit we now have the benefit of her participation in these proceedings.
§ Many women are now of an age and an experience that they would be suitable for promotion to the bench at all levels, and women are being promoted more often. I agree that it is a pity that not more women are being promoted, but the judiciary—as a bench—is none the worse a provider of justice simply because in the division or court that the hon. and learned Lady mentioned 7 per cent. of the personnel are women and 93 per cent. are men. I hope that I do not sound too complacent, but it is reasonably fair to say that the members of the senior judiciary and the circuit bench are widely respected men and women in the United Kingdom and outside it.
§ Of course, there are some oddities. I speak with some diffidence for two reasons. First, I am the most junior form of judicial life—a Crown court recorder, who is very part-time. Secondly, I must confess that my great-uncle—by marriage, I add rapidly—was in the early 20th century a Member of Parliament who became so tiresome to the Conservative Whips, because his interest in drink rather than in the public policy issues of the day meant that he was always wandering into the wrong Lobby and refusing to be pulled back, that the Whips approached the then Conservative Lord Chancellor and 522WH asked, "What shall we do with him?" to which the answer was, "Make him a judge," so off he went to become a circuit judge. That does not happen nowadays, and the courts are all the better for that. However, I digress—although I must commend the House authorities on the gently carbonated water with which they provide us.
§ In the hope that I have not overstayed my welcome, let me briefly congratulate the Chairman of the Committee and his fellow Committee members on their report and gently chide the Government for their somewhat inadequate to response. They might be in a bit of a muddle and not quite sure what to do, having set this hare running last June. We are having to deal with the problem that they have created for themselves, and the Committee—perfectly properly and most effectively—has highlighted the constitutional and practical difficulties that have been thrown up by the reforms that were written on the back of an envelope last June.
I shall concentrate first on the office of Lord Chancellor. It is undeniable that his Department has taken on several new responsibilities since 1997: it now deals with the courts tribunals, freedom of information and data protection, human rights, electoral law, reform of the House of Lords and other constitutional reform, judicial appointments, party funding, civil and criminal law, legal aid, and royal, Church and hereditary issues, Its budget is now measured in billions. In her article entitled, "The Office of Lord Chancellor: time to abandon the judicial role—the rest will follow", published in the March 2002 issue ofLegal Studies, Professor Diana Woodhouse described the Department for Constitutional Affairs as
a resource-hungry department at the centre of government, which operates under the same management and value-for-money regime
as other industries. She went on to say that it has become a significant Department, and that the balance of the Lord Chancellor's functions has
moved away from the judicial, towards the executive and political, a shift which means that increasingly executive responsibilities are being carried out by an unelected minister whose territorial boundaries are imprecise and subject to adjustment at his and the Prime Minister's dictate.
The DCA is blessed with three Ministers in the Commons, not one of whom, I believe, has been a practising lawyer. Actually, I might be wrong about that: one of the Under-Secretaries of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), is a member of the Bar. However, the Department is essentially an Executive Department with spending like any other, and that has changed the way in which commentators regard it.
§ The Lord Chancellor's role has been criticised by others, most notably Lord Steyn and other Law Lords. All the critics have presented arguments that are perfectly respectable, neat and eminently rational, but one of the strengths and joys, of our constitution is that it is different from every other constitution, yet wholly capable of protecting citizens' rights and interests. We live by what is reasonable, not by what is rational. Our common law has provided as much, if not more, protection to the individual against the over-mighty state as the judgments of the supreme courts of countries 523WH with written constitutions. No amount of fiddling with the Lord Chancellor's role will make a worthwhile difference to that.
§ It is true that the Lord Chancellor bestrides the constitution in a rather untidy way. We do not have a Justice Minister, but is our democracy the feebler for that? Are our judges Government stooges who do no more than the bidding of the politicians who appointed them? Are they appointed for their political views or their legal expertise? How many times since the Human Rights Act was passed, let alone before its enactment, have the courts decided cases against the Government? Does not the Home Secretary fulminate against the judiciary for applying the very laws that his Government have passed? Do our courts never award damages against the police or Government Departments? At a time when the Royal Navy, our troops and the Royal Air Force were engaged in the recent Iraq war, was not a private citizen granted £1 million in compensation from the Ministry of Defence for nuisance caused by noisy, low-flying RAF fighter jets over his house near Stamford? Are not the rights to strike and to demonstrate protected by the courts? Have Lord Irvine of Lairg and other Lord Chancellors—I accept that Lord Falconer of Thoroton does not sit judicially—given judgments in the House of Lords on political as opposed to strictly legal grounds, or ever threatened the legislature that unless it did their party's bidding, they would give judgment to redress the matter in the Committee?
§ In answer to those and many similar questions, Lord Irvine—a man with questionable political and diplomatic skills—can justly claim to have behaved entirely properly. Like him or hate him as a party politician, he was subject to the control of Parliament in all that he did as Lord Chancellor. Although the present officeholder, Lord Falconer, prefers a new departmental title and is also a Secretary of State, he is equally circumscribed by Parliament and convention—at least for now.
A previous Lord Chancellor, Lord Hailsham of St. Marylebone, made the following submission to the Council of Europe in 1979:
We have an omnipotent, omnicompetent and sovereign parliament and, to some extent, it reflects the will of the executive, but we have an independent judiciary and the function of the Lord Chancellor is precisely to maintain the independence of the courts of law and the judges. We have no written constitution and in the absence of a document we must rely on the integrity of a man. It is the function of the Lord Chancellor to fight, to his last gasp if need be, for the independence of the judiciary. He can perform that function only if he has a foot in all three camps.
That obviously means all three camps of the constitution. Politics is a business susceptible to fashion. The names and remits of Departments change as frequently as their political masters. The turf wars between the Home Office, the Office of the Deputy Prime Minister or the Department for Transport, Local Government and the Regions, the Department for Environment, Food and Rural Affairs, the Duchy of Lancaster, the Law Officer's Department and the Lord Chancellor's Department, as it used to be called, will surely wax and wane. No doubt the extensive political and executive role of the present Lord Chancellor will be different to that of his successor, whether he is a Labour or a Conservative Lord Chancellor. However, the vital and central role of the Lord Chancellor, which requires
him to tread carefully along the three parallel but invisible lines of the British constitution, is justified and justifiable, even in the face of demands from political fashionistas. Although there may be room to restructure the remit of the Lord Chancellor's Department or the Department for Constitutional Affairs and to depoliticise the office of the Lord Chancellor, which is frequently and most usefully held by people of the highest intellect and legal experience who are beyond political ambition and above the hand-to-hand political fighting that is modern politics, the essential purpose and functions of the office should be maintained.
§ The office of Lord Chancellor is not bad because it is ancient; it is ancient because it is good. An office that has served this country and its constitution well for hundreds of years does not need to and must not be abolished to answer a seven-day political crisis over a cabinet reshuffle in June 2003.
§ Peter Bottomley: For the record, it was only during the period when there was no Lord Chancellor—a period of hours—that the Government, without the advice of the previous Lord Chancellor or the incoming one, managed to make such a mess of the judicial arrangements.
§ Mr. Garnier: I am afraid that that does not surprise me in the least—none the less, it saddens me. It is an act of constitutional vandalism to enter into this arrangement. My hon. Friend the Member for Hertsmere (Mr. Clappison) made this point in a rather more fluent and attractive manner, but essentially the Government have embarked on a wholly unnecessary and damaging constitutional reform exercise without looking round the corner to see the practical and constitutional consequences. The expense of setting up the new supreme court is a matter of tedious practical administrative detail, but one hopes that that would be the kind of small thing—not small in terms of money—that the Government would latch on to and deal with. It is their failure to comprehend what happens then, let alone to comprehend the huge number of statutory and other duties that the office of Lord Chancellor holds, that disappoints me, although it does not surprise me.
§ Mr. David Heath(Somerton and Frome) (LD): There seems to be a certain circularity in the hon. and learned Gentleman's argument. He has just told us that the office of the Lord Chancellor has served us well without any show of partiality over hundreds of years, but he opened his remarks by talking about his great-uncle by marriage who was appointed to the bench by a Lord Chancellor on the grounds that he was an incompetent Member of Parliament. It seems hard to reconcile those two facts.
§ Mr. Garnier: I do not want to bore the Chamber with my family history, but the short point is that even today some appointments slip through the net that should not. I am not suggesting that the current system for the appointment of judges is perfect. However, by and large it is pretty good and the number of not very good judges who get appointed is very small indeed. By telling him that little story, I had hoped to amuse the hon. Gentleman—I clearly failed—but no more than that. More to the point, it was an irrelevant anecdote. I 525WH cannot imagine that the Constitutional Affairs Committee, let alone the Chamber—and certainly not the Lord Chancellor—is in the least bit interested in my family history. If the hon. Gentleman does not mind, I will move on to the creation of a supreme court.
§ The Government's ostensible rationale behind the creation of a supreme court seems to be a purist approach to a separation of powers and an embarrassment that we do not enjoy that in the 21st century. Judges, it is said, should be entirely separate from the legislature and the Executive and should be seen to be so, so it is anomalous that the highest court of appeal is situated in one of the Chambers of Parliament. However, the British constitution is not purist: it has developed incrementally in an intentionally practical and pragmatic fashion. It would obviously be unacceptable for judges to become involved in party politics, and they have not done so. However, the ability of senior judges to represent the views of the judges to the House of Lords as a legislature—I take the good point that the hon. and learned Member for Redcar made in an intervention—is invaluable, all the more so when the House of Commons is, contrary to popular perception, almost a practising lawyer-free zone and when some Ministers adopt an increasingly antagonistic and often unfair attitude to the justice system and the judiciary. Equally, it is no bad thing for the senior judiciary to have some exposure to party political opinion. They do so by being Members of the House of Lords and being physically based in Parliament. That line of argument has been much better expressed in debates in the House of Lords over the past three or four months. If hon. Members have not read those debates, it is worth while doing so, to read people deploying the arguments rather more effectively than I have done this afternoon.
§ In addition, the current system represents good value for money for the taxpayer. The House of Lords, unlike most other supreme courts, costs little more the judges' salaries, which are modest compared with the earnings at the top of the Bar and the solicitors' profession. There is little administrative backup, the judges do not have assistants or advocates-general, and there are no referendaires. There is no cost for a separate building, let alone a separate secretariat. Above all, the Law Lords write their own judgments, so that their own reasoning and conclusions are reflected rather than those of their assistants. That cannot be said of the judgments of the Supreme Court of the United States, nor can it often be said of the judgments of the European Court of Justice or the European Court of Human Rights.
§ A supreme court would be much more expensive. Some Law Lords have already called on the Government to ensure that the new court will be able to discharge its functions effectively. The building must be dignified and fit for a co-ordinate branch of government, and the supreme court's resources must be sufficient. That may justified, but it will be expensive, and that expense will not produce much benefit, tangible or intangible, in attracting business from abroad—a point to which the right hon. Member for Berwick-upon-Tweed (Mr. Beith) referred in his opening speech. By contrast, a new commercial court—a project strongly demanded by the City of London—would 526WH bring real commercial benefit to the country as a whole. The quality of the judgments of a supreme court would not be better than those now delivered by the membership of the House of Lords—indeed, it may even be worse, if the new appointments systems substitutes political correctness for merit as the basis for appointment.
§ The starting question with the proposed creation of a supreme court must be: will it be a substantial improvement on the current system, given the costs of providing the new premises and creating a new bureaucracy, to which my hon. Friend the Member for Beaconsfield referred? Will the project be worth while? Given the other demands on a limited budget in the legal field, such as for a new commercial court, is the creation of a supreme court the best use of public resources? Unless the answers to those questions are clearly in the affirmative, there is much to be said for retaining the Judicial Committee in the House of Lords as our highest court. What we do not want is the Law Lords to be removed from the House of Lords and put into a temporary home while the Government thrash around looking for places in Somerset house, the royal courts of justice or Parliament square. I have even heard Centre Point being talked of a suitable place to put up the supreme court. The situation is utterly farcical. Such an enterprise ought to be planned and then implemented, not shouted from the rooftops and then worked backwards. We will end up with portakabin justice if we are not careful. I suspect that the more the proposal can be ridiculed and tested to destruction, the more the Government will come to see something reminiscent of common sense in their deliberations.
Another of the Government's apparent misunderstandings is that they must separate the Judicial Committee from Parliament, because of the European convention on human rights, which comes under the jurisprudence of the European Court of Human Rights, and the need to have a separate court. I suggest that that is a total misunderstanding of the judgment in the McGonnell case. I shall not bore the Chamber with the details—I can see that you are keen that I do not, Mr. Chidgey—but that was the Guernsey bailiff case. Those who follow the subject with greater keenness than I will know that in talking about "the Guernsey bailiff case", I have said enough. I can see the hon. and learned Member for Redcar warming up to talk to us about the McGonnell case. The Court said, in paragraph 51 of its judgment on that case:
The court can agree, with the United Kingdom Government that neither article 6
of the convention
nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts as such. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position in Guernsey: the court is faced solely with the question of whether the Bailiff had the required appearance of independence, or the required objective impartiality.
The bailiff sat as a quasi-Minister and as a judicial officer during the course of a planning case.
§ I have criticised the Government for making up a doctrine of constitutional reform on the hoof to satisfy a little difficulty they had in reshuffling the Cabinet last June. I urge them, because I think that they are a 527WH modernising Government, not to foist a rigid 18th century interpretation of the separation of powers on the 21st century British constitution, which, although is not written in one document, is incredibly flexible and pragmatically developed.
§ Mr. Grieve: My hon. and learned Friend may agree that that 18th century concept was the result of a great French philosopher coming to this country and failing completely to understand its constitution. The doctrine of the separation of powers was born of a complete misunderstanding of the independence of the judiciary, which was the part of the British constitution that he praised.
§ Mr. Garnier: Montesquieu's descendants in France look somewhat askance on their judiciary, the Irish have had problems with the way in which their judiciary is appointed, Mr. Berlusconi, the Prime Minister of Italy, spends all his time having little local difficulties with the Italian judiciary, and the Spanish judiciary is political, as we discovered during the Pinochet case. Let me finish with that case, since it is to do with the House of Lords.
§ When the robust Judicial Committee of the House of Lords made a mistake—when Lord Hoffman failed to declare an interest yet continued to sit on the appeal—the House of Lords as a judicial institution removed him from the Pinochet case and started again. That unfortunate episode demonstrates that our current system, for all its imperfections, has the strength to ensure that justice is done and is seen to be done. It can be done. We can appoint judges through the office of the Lord Chancellor and we can do justice to citizens of this country and foreign litigants who come to our courts to get justice done in the Judicial Committee of the House of Lords.
§ I urge the Government to pause and to think long, hard and carefully before they move on the plans that were drawn up on the back of that famous—not lavender, but some other colour—piece of stationery last June.4.19 pm
§ Vera Baird(Redcar) (Lab): The envelope cannot be that famous if the hon. and learned Gentleman cannot remember what colour it was. It is many months since that occurred, but I think what he said is a parody of the reality. There has been much consultation and excellent work done on the proposals since then, as he, in a calmer moment, would know.
§ This is an excellent report. I add my congratulations to the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who is obviously much respected by his Committee, as he is by the House at large—on the calibre of the Committee's deliberations, which have come up with such a good product.
§ May I declare an interest? I am a barrister, as if that were not obvious from what has been said. I apologise for not having been in the Chamber early enough to hear all the remarks made by the right hon. Member for Berwick-upon-Tweed. I thank the hon. and learned Member for Harborough (Mr. Garnier) for saying that I might have made it as a judge if I had not made a career change. I do not know whether that is right, but I hope that his view—that I would have been a successful 528WH woman in the judiciary—takes away what the hon. Member for Hertsmere (Mr. Clappison) tried to suggest: that I was being subjective when I criticised the failure to appoint women.
§ I shall deal first with the issue of the supreme court. There is an overwhelming case for it, of course, and I agree entirely with the way in which the right hon. Member for Berwick-upon-Tweed put it. It is clear and obvious that there would never be a design for a constitution that did not have the supreme court separate from the legislature. Despite his speech, the hon. Member for Hertsmere signed up to the report.
§ I take the constitutional principle for granted. I reiterate the point that I put to the hon. Member for Hertsmere: it is puzzling for the public to hear that a case is going to the House of Lords. One has to be something of a jurisprudentialist to understand that that is not the same body as we hear about on "Today in Parliament" from time to time. That lack of clarity is distinctly unhelpful in a modern society.
§ Mr. Garnier: I have had a long shot, and I do not wish to interfere too much in the hon. and learned Lady's arguments. However, she has made a point that is beyond the realms of reality. By the time a case gets to the House of Lords, the legal dispute is probably three, four or five years old. If the lay client, the litigant, does not realise the role of the Judicial Committee in the House of Lords by that stage, they are in need of some form of care and assistance.
§ Vera Baird: The hon. and learned Gentleman is very unkind. Although the case might be that long, its attachment to the House of Lords is very brief; they rush one on like mad. There is hardly time for the lawyers, let alone the clients, to understand the tortuousness of that bizarre anachronism.
§ That is what it is: an anachronism. The original final court of appeal was the House of Lords itself. By the 1870s, it had been realised that a few lawyers were needed there, so they were appointed through the Appellate Jurisdiction Act 1908. Perhaps I am being unkind; perhaps it was that more lawyers were needed than those who by accident were also peers. So proper lawyers were appointed. Then it became clear that only proper lawyers should take the cases on, so they sat in a little Committee Room. That is how it all came about. It had nothing to do with planning, its own innate virtue or constitutional principle at all. It is an historic anachronism; it just happened, and it is time that it was changed.
§ I went to the House of Lords for the first time when I was a pupil—a very young barrister. It was a very engaging occasion and I was not advocating, just watching. There followed the perfecting of their lordships' advice into a resolution of the House to make it a valid judgment. That meant that everybody came back a few days after the judgment, and a rigmarole took place in the main Chamber.
§ On that occasion, for some reason that I still do not understand, Lord Bridge, who presided over the court case—now hon. Members have a fair idea of how old I am—sat on the Woolsack while the other members of the Judicial Committee sat around. Then he moved away and proposed that the advice of the Judicial 529WH Committee be accepted by the House of Lords as a resolution. He then moved back to the Woolsack to ask who was content with that proposition. Not surprisingly, since it was their judgment, their lordships all voted for it, and it became a proper judgment. That was bizarre in the extreme.
§ It is all a performance. The hon. Gentlemen on the Opposition Benches regard that as neither here nor there in the average Tory day. It must happen at all sorts of times, in all sorts of places and in all sorts of ways. Let us be realistic, however. It is a sign of how difficult it is to compress such matters into the constitution. That somehow we have to use such a mechanism to bring an historic anachronism back into the constitution does not make sense at all.
§ I now want to make two serious and probably less amusing points. I took part in a case in the House of Lords soon after I got silk in which the presiding judge was considering whether the Committee would look atHansard. Despite the hon. and learned Member for Harborough saying that there are not many practising lawyers in the House, the Chamber is full of them. Almost everyone here will know of the rule that judges do not look toHansard to interpret the law unless there is an uncertainty and then the rule under the case of Pepper v. Hart is used, wherebyHansard can be consulted to throw light on the uncertainty.
§ In my view, there was an uncertainty in the case to which I referred. My colleague tried to persuade the bench that it should readHansard to understand why the Lord Chancellor enacted a particular aspect of the human rights legislation. The bench did not find my colleague's arguments persuasive and refused to look atHansard. However, on looking atHansard, we found that three members of the bench had been listening to the Lord Chancellor explaining the legislation. Again, that is complete nonsense in the context of a proper constitutional principle.
§ During the case, I took colleagues through the Regulation of Investigatory Powers Bill, as it then was. The case concerned phone tapping and the Bill was on the stocks to alter the law about that. Clearly, it could be persuasive in respect of how the phone-tapping problem should be approached. Part of the way through the case, the court adjourned for lunch, and on his return, the presiding judge said that he had been lobbied over the luncheon suspension on how to vote on parts of the Act that I had just been taking him through.
§ Of course, such great brains can separate themselves from those pressures, and the fact that they know aboutHansard, and know perfectly well what the purpose that they are refusing to look at is. They can take themselves away from the fact that they had been lobbied in a particular direction, and consider the purity of my arguments. However, it is almost impossible to say that such action looks like justice being done. It is difficult to be absolutely sure that even the best of people are not influenced either towards what they know, which they should not know, or, out of an excess of fairness, against what they know, which they should not know. That is more likely to happen with the House of Lords, which is of very high calibre. There are good reasons for the change.530WH
§ Mr. Garnier: If the arguments put forward by the hon. and learned Member for Redcar have a logical purity to them, I assume that she wishes to remove the powers of the Deputy Prime Minister to interfere with planning decisions. That man could be influenced by local, regional or national political considerations when deciding whether to permit an inspector's decision on a new airport or a big planning matter to be overturned. Who knows? She is pursuing the line against a member of the House of Lords who discusses a particular statute. Given that it were a statute, presumably it had already been voted on, so she must want to take the same line in both cases of judicial conduct.
§ Vera Baird: No. First, the measure was a Bill then, although it is now a statute. If I called it an Act, I apologise. The person in question still had to vote on it; that is the point. Secondly, the hon. and learned Gentleman's guess is wrong. There is no logical parallel in his argument. If my right hon. Friend the Member for Hull, East (Mr. Prescott), or any other Deputy Prime Minister, takes into account an inappropriate matter when he is making a determination, he would be judicially reviewed, which cannot really be done in respect of the House of Lords.
§ The notion that the House of Lords Judicial Committee has contributed to the House itself is not easily to be discarded. As it says in its submission, there are 80-odd lawyers in the House of Lords; those on the Committee do not regard themselves as being the only good ones who can contribute—and they certainly are not. There are a great number of excellent lawyers, many with practical experience, who do not end up on the Judicial Committee but could, and should, be appointed to the peerage on their own merits.
§ The whole argument for having members of the Judicial Committee in the House of Lords is fundamentally flawed when one considers that they themselves, rightly, do not simply say, "If I have sat in the House of Lords legislative Chamber, I won't hear a case on the topic discussed." They say, "The problem is far wider than that; we have, since 2000, taken a voluntary vow never to contribute to debate in the House of Lords Chamber on any matters on which the Judicial Committee may have to make a decision." As such matters will inevitably encompass most of their experience and knowledge, they are, frankly, not likely to make a great contribution in the House of Lords Chamber.
§ Mr. Grieve: Why should that be the case? Surely their presence in the House of Lords Chamber, and their ability to network with those in the process of legislating, is valuable to them, both because of the contribution that they may make informally and because of the information that they will receive. Certainly they cannot be compartmentalised so as not to network at all. I dare say they find themselves networking informally at every dinner party that they attend. They would certainly be deprived of a forum in which they can receive a lot of informed opinion and make contributions
§ Vera Baird: I do not think that the hon. Gentleman is right in the slightest. The notion that, having taken a self-denying ordinance on being present and 531WH contributing in the Chamber, Law Lords would go round the back and have a conversation about the same issues is startling. They themselves do not feel that they make a major contribution; or rather, they feel that they cannot do so on the areas of their expertise. Therefore, they seem to fall into the category of being no better and no worse than any peer who is not a Law Lord. Their contribution must be in real doubt
§ There is no doubt at all that there is a real need for Parliament and the judiciary to be close in an appropriate way; but this artificial method is not the right way. There is really no objection—if it is thought right, and if future appointments procedures allow it—to heads of division having peerages; that way, they can be present and the kind of informal, more general communication to which the hon. Gentleman referred can be ensured. However, it is not a plus for the current system that they sit in the Chamber, because the matters on which they sit have only a small ambit, and they have expertise on the very matters on which they do not sit.
§ What exactly is the opposition to the proposal? I shall come to the cost of the building in a minute. The Law Lords are, of course, split in their objections, so no objections come from the whole body. The split was six-four at the time of the paper, but now, mercifully, Lady Hale is there to show the way, and it will be six-five, because not only is she in favour, she is a positive advocate of the proposal. If we are to count enthusiasm, Lord Bingham is a huge enthusiast, too. Indeed, on another occasion many Opposition Members were cheeky enough to suggest that the proposal was his idea in the first place.
The Law Lords
believe that the Law Lords' presence in the a House is of benefit to the Law Lords"—
well, I am sure that it is, and that it is very nice for them—
to the House"—
I dealt with that, and I think that it is not a major argument—
and to others including the litigants"—
but in what way is not said. Let us get to the meat of it: appeals are heard in a unique and suitably prestigious setting for this country's final Court of Appeal. The Law Lords also refer to the fact that the House of Lords is recognised under that name throughout the common law world, but that, too, is a poor argument.
The Law Lords who support the proposed change regard
functional separation of the judiciary … from the legislature and Executive as a cardinal feature of a modern, liberal, democratic state governed by the rule of law
consider it important, as a matter of constitutional principle, that this functional separation should be reflected in the major institutions of the state, of which the final court of appeal is certainly one.
I do not think that there is any difficulty in saying who has the better arguments there.
The rest of the opposition boils down to the building, does it not? I think that that is about the size of it. The Lord Chief Justice made a speech on 3 March, and, having set out some concerns, he said:
These worries do not cause me to be wholly hostile to the idea of a new Supreme Court. However, if I had a vote on the subject, I would be in favour of deferring a decision, until I knew, first of all, the building which it is intended the Supreme Court should occupy.
We are facing a bit of basic trade unionism here, but I do not necessarily blame the Law Lords for that, because they should certainly have somewhere nice. However, I do not know whether the hon. and learned Member for Harborough remembers—he is the most likely person to do so—how much the Law Lords used to complain, before this idea was even mooted, about the abysmal surroundings in which they had to work. They had broom cupboards for offices and inadequate secretarial, library and clerical support. It is only since this proposal has come to light that they have started to realise how truly, truly wonderful it is to be a member of that particular boys club.
§ Mr. Garnier: I do not mind the hon. and learned Lady teasing me; that is fair game. However, I think it is beneath her to describe the Judicial Committee as a boys club. I thought she was better than that. Of course there are things that could be done to the structure of the House of Lords offices. In the debates at Easter, Lord Hope said that the only reason he has his own lavatory is that Lord Savile has been in Northern Ireland for so many years, at vast expense. That has freed up a lavatory, so there is no judicial problem there. There are lots of little jokes that we could tell about judicial lavatories and secretarial space, but that is not the meat of the great constitutional question. Where the judicial bottom goes is way down in the great decision-making process. I am sure that the Minister is not worried at all about that. His mind is entirely settled on the great constitutional issues that this debate throws up.
§ Vera Baird: It may well be beneath me to talk about judicial bottoms. I did not refer to the Judicial Committee as a boys club. What I wanted to say—and if I put it in an unguarded fashion, let me withdraw that—was that its members are extremely comfortable in the club-like ambience of the House of Lords, with all the prestige that it carries, and they refer to that. They are unhappy about the prospect of moving away from that ambience unless they know that they will get something equivalent. That is a bit of basic trade unionism. I do not particularly blame them for feeling like that, but it is the poorest imaginable reason for holding back an important constitutional change.
§ I want to talk briefly about diversity.
§ Mr. Clappison: The hon. and learned Lady is making her remarks in a very elegant way, but will she pause a moment to reflect on what I have to say? The rationale for this reform is to separate the judiciary from the legislature and to give it a greater appearance of independence. Does she not feel that there is a conflict between what she said about that and the remarks that she and the hon. Member for Lancaster and Wyre (Mr. Dawson) made about inviting the Executive to take a more robust line with the judiciary and to order them about, and with the complaints that they are trade unionists?533WH
§ Vera Baird: I did not urge the Government to take a tough line with those trade unionists. I referred to them taking a tough line with the Government, and even suggested that the Government were being so soft that they were giving way on the question of public applications for membership of the supreme court in order to negotiate. If anything, I was complaining that the Government were being too soft. The hon. Gentleman has got the wrong end of the stick—not for the first time I am afraid, as in his speech he admirably displayed the ability to get the wrong end of the stick about diversity as well.
§ Labour research shows that, sadly, our new Labour Government have barely made any difference at all to the structure of the judiciary. You have heard the figures, Mr. Chidgey. Let me confirm that they go all the way down; it is not just one Supreme Court judge—one House of Lords judge. Women were allowed to come to the Bar in 1922. The fact alone that until 2004 there was never a woman in the senior court in the land makes the point about diversity.
§ Now that Dame Brenda has gone, there are, I think, two women judges in the Court of Appeal, out of 38. Seven of 107 High Court judges are women. There are no black or ethnic minority people in that sphere at all. Ten per cent. of circuit judges and 12 per cent. of recorders are women, and 36 per cent. of district judges are women. As to black and ethnic minority people, their presence on the circuit bench is 1 per cent.—I think that that means two people—and in the recordership it is 3 per cent.
§ What cannot be overlooked, although perhaps it is a minor point, is the way in which the appointments system works. The High Court is made up of silks. The circuit bench is made up of members of the Bar, and the district judges are solicitors. Everyone knows their place. One reason why there is not a career judiciary—I agree with my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) that there should be one—is that even when people are appointed, there is a sort of class distinction among judges, which does not allow that to happen. It never will, as long as the senior judiciary is in charge.
§ Seventy per cent. of judges are said to have been educated at public school and Oxbridge—that must relate to the High Court—and the present appointments system works primarily by taking soundings, by asking the judges who should succeed them. They generally think that people like them should succeed them. However, there has never been a detailed study of the office of a judge or the competencies required. There is no job description or person specification. It is hard to know how soundings of any kind can evaluate candidates against objective criteria.
§ Mr. Grieve: I do not want to encourage the hon. and learned Lady to continue for too long, because I am mindful that other hon. Members want to speak, but she has reached an important issue. Would she amplify how the criteria should work? Irrespective of whether the Lord Chancellor or a judicial appointments commission is making the decisions, the same issues are likely to arise about how to go about making an appointment. I 534WH should be interested to know what the hon. and learned Lady sees as the new criteria that should be considered to achieve the result of merit.
§ Vera Baird: I do not know whether that intervention was based on an underlying acceptance that the result cannot be achieved in the present system, but it is perhaps implicit. I shall come to that issue, of course. I might add that half of the 36 most recent appointments to the bench were not subject to any procedure. The people concerned were invited to join the bench. I am talking about the High Court, where no application is required.
§ The problem, to some extent, is, as everyone has said, less that those who have the plus of good soundings are not up to the job, than that good or better candidates whose backgrounds or gender make them less obvious members of the brotherhood are kept out by the bias in soundings. I make no bones about that. There are better black people and women at the Bar than some of the people who are on the High Court bench or the circuit bench. I have not the slightest hesitation in saying that the same applies to the Court of Appeal. There are some excellent people in, but there are some excellent people out, and some of the people out are better than some of the people in.
§ That is one weakness in the argument of the hon. Member for Hertsmere that the system is good enough now. When he asks why we should rock the boat, I say, because things could be better. Anyone but a bigot would understand that there is no clash between quality and diversity. If we widen the pool, we shall get more choice, so we shall get better people. That is a simple principle.
§ How are appointments to be made? Not as they are made now. I shall run through, for a minute, some of the atrocities that take place in the current system. Sir Colin Campbell, the First Commissioner for Judicial Appointments, relates some of the comments made about female silk applicants by senior judges. As everyone knows, silks become the vast majority of High Court judges, so discrimination at silk level becomes double discrimination when appointment to the High Court bench is being considered.
One woman barrister was reported, in all seriousness, to have poor dress sense; it was considered appropriate for a High Court judge to say that about a female applicant for silk Another judge referred to the significance—Sir Colin Campbell is sufficiently discreet not to say how—of a woman's marital status; one can only assume that it was less than regular. A third commented that a woman candidate was
not a natural leader of the profession".
Translate that into what it could possibly mean. Perhaps such things are not taken seriously? Yes, they are.
For the past few years, failed silk candidates have been entitled to interviews that feed back anonymously the material that informed those decisions. Many women have been told of other equally inappropriate comments. Allegations were made of "emotional" conduct in court, which were completely untrue, and an
official at the Lord Chancellor's Department told one horrified candidate,
we know that gossip creeps in sometimes.
That did not reassure her.
§ One woman, believed to have had an affair that had ended 10 years beforehand, was told that some of their lordships still commented on it. They should never have commented on it in the first place, but they were still commenting on it to her disadvantage 10 years later—this to see whether she was good enough to become a senior advocate.
§ Another woman had worked out which judge had made a particularly unfair comment, and wrote to him. That was a tribute to her powers of cross-examination of officials in the Lord Chancellor's Department, who are not supposed make such disclosures. That in itself should have persuaded them that she was good enough for silk. The judge's reply to her letter praised her "real ability" and said that he wished her well for her future. That contrasted stunningly with the remarks that had been relayed to her through officials before the judge's identity was known. It should not happen.
§ Aptitude, intelligence and suitability across a range of qualities are easily measured by modern procedures. Last year, for the first time, a competency-based appointments process was used for appointing district judges. The commissioner, Sir Colin Campbell, was impressed. The high judiciary argue that that cannot apply to them. They say that the most able lawyers should not apply, but must be taken aside and persuaded to lend their vast ability to the public service. I do not think so. Do those godlike creatures not understand the need for fair procedures? If not, do they have the quality to be judges?
§ I referred to the argument about diversity, which has featured appallingly in this debate. Saying that the danger of diversity could lead to a reduction in quality turns logic on its head. The wider the professional pool, the higher will be the calibre of those who compete to be drawn from it. That, I would have thought, was completely straightforward.
§ The key to the hoped-for success of the commission is that it must not be dominated by the judiciary. The judiciary refuses to see that positively discriminating in favour of its already dominant brotherhood cannot continue, or nothing will change. There must be a lay majority on the appointments commission—and on the body that sets it up. I respectfully agree with the right hon. Member for Berwick-upon-Tweed that it should not be chaired by a judge.
§ The selection procedures for public service appointments are well established. They deal fairly with diversity, and they are open and clear. Those are the kinds of procedures that must be used to appoint the judiciary, which is clearly a public service. It will be a long job for the judicial appointments commission to bring those procedures into place. It will be an even longer job for it actively to widen the pool of available candidates. However, as soon as the forces of reaction allow it, those applicants that it can encourage to come forward will be dealt with professionally, rather than shabbily and discriminatingly, as they have been in the past.
§ I end by telling the hon. and learned Member for Harborough a story in two lines, rather like the one that he thought had fallen out of use. I was appearing in a 536WH case in a provincial Crown court, and I made a comment during the judge's summing up to the silk who was sitting beside me. He did not hear it. He was slightly deaf, so I said it again slightly louder. He still did not hear it. I repeated it three times—hon. Members know how weak one's comments seem when they have to be repeated for a third time. He still did not hear it. He turned to me and said, "Do you know Vera, I'm getting so deaf I'll have to go on the circuit bench." I will give you three guesses what his job is today.
§ Mr. David Chidgey(in the Chair): Order. I must remind hon. Members that I will be starting the Front-Bench speeches at 5 o'clock at the latest.4.50 pm
§ Mr. David Kidney(Stafford) (Lab): Thank you, Mr. Chidgey. Let us see if I can finish before that time.
§ I am not a member of the Constitutional Affairs Committee, but I especially wanted to be present today to praise it for its report. I am glad to have the opportunity to praise the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who introduced this debate, for his excellent presentation of the report and the developments that have taken place since. He told us that members of his Committee had the temerity to vote against his opinion on the lay chair for the judicial appointments commission. I agree with his conclusion, not with that of the rest of the Committee. If he has a good enough memory, he will also remember that in the Chamber I have twice agreed with him on the process by which we carefully scrutinise the Constitutional Reform Bill. Like him, I support pre-legislative scrutiny, and I agree that what the House of Lords has done, against the Government's wishes, has given us much of what we wanted: a much a better pace for scrutinising the legislation. We can take time with something that is very important, and ensure that we get it right.
§ As I understand it, the Select Committee appointed by the House of Lords will complete its deliberations next month. Therefore, the decision to send the Bill there was not a case of batting this matter into the long grass after all. The legislation will come out of the Committee in a much better condition that it went in. I must pay tributes all round to those who stood their ground on that subject, and I am pleased to count myself as one of them.
§ In a moment, I want to mention solicitors. Therefore, I had better declare that once upon a time I was a solicitor, and was in private practice for 20 years. I stopped working as a solicitor as soon as I was elected to Parliament, but I keep my name on the roll of solicitors to this day. That is the interest that I must declare—although I am not making a job application today to become a judge under the new procedures.
§ I want to say how much I support the principle of establishing a supreme court, because it is wrong in principle that the people who interpret the laws and make the judgments upon them are also part of the legislature that deliberates and forms those laws. It is right to make the separation of powers in that specific case. It is wrong to talk about Montesquieu in that context, because in this country we do not have the kind 537WH of separation of powers that he discussed. This is simply a matter of the narrower point about the independence of the judiciary from the legislature. As the right hon. Member for Berwick-upon-Tweed said, it is right that serving members cannot be members of the House of Lords, but when they retire they could be appointed to it, should an appointment process—and, indeed, a House of Lords—exist by that time.
§ Some of the issues that we have talked about, such as buildings, budgets and the dispute that might occur between the new supreme court and the Government, overlook the fact that the Bill is not yet law, and Parliament still has a role. There are issues for Members of Parliament to discuss about what kind of building would be suitable, when the court will be established and how the budget is to be dealt with afterwards. I would share the concerns of hon. Members who have spoken in this debate if there were to be a proposal before us that the fee income of the supreme court would be the entire budget for maintaining it in the future. Clearly, its role as the ultimate court of appeal on issues of great public interest and concern goes much wider than the narrow interests of the individual litigants before the court. I hope that we will be able to have our say, as Members of Parliament, on that in the not too distant future.
§ I will briefly discuss the supreme court appointments commission. I note that the Secretary of State has given way on the idea of one name being put forward for him to pass on to the Queen for approval. As I understand the composition of the appointments commission, it is possible that every member of it would be a practising member of the legal profession. I think that could be a worrying and inward-looking aspect of its new independence. However, I hope that it is not, especially because they are going to put forward only one name. I hope that we will take great care to ensure that there is a lay input in the membership of that commission. Clearly, on the independent judicial appointment commission proper, there will be lay representation, and I am pleased that there will also be a practising barrister and a practising solicitor. As I said earlier, I agree that the chairman should be a lay member of the commission.
§ I look forward to greater diversity in our judiciary as a result of the changes that will be made. I expect the best candidates to be appointed, but that is no excuse for poor methods of appointment. Surely, all potential candidates of merit must be encouraged to seek appointment. So far, the debate has focused on women and ethnic minority members of the profession, but I would like to mention solicitors, who are also under-represented in the judiciary. The Law Society tells me that research indicates that women, ethnic minority members of the profession and solicitors are all seriously under-represented in the senior ranks of the judiciary. In the case of women, they are under-represented even when allowance is made for the proportion that they form among lawyers of appropriate seniority.
§ My last point is about political accountability. Clearly, it is right that politicians of the day have an interest in what an independent judiciary gets up to, even if it is only the cost of the wallpaper for a judge's private rooms. We have a role to play. Therefore, it is 538WH right that the Secretary of State will recommend appointments of judges to the Queen, and that he or she will have a partnership role with the president of the supreme court in disciplining judges. It is right that a judicial appointments commission will produce an annual report, which will be presented to this Parliament and also to the Scottish Parliament and the Northern Ireland Assembly, and that the Select Committee will continue to take an interest in the role of the judiciary in the future.
§ Further to the debate on confirmation hearings, I should mention that I was on the Treasury Committee in the last Parliament when the shadow practice of carrying out confirmation hearings for members appointed by the Chancellor to the Monetary Policy Committee was developed. Clearly, we did not have the right to veto anyone, but we took an interest in the new members of the MPC and interviewed them shortly after the Chancellor had, announced their names. I suggest to the Constitutional Affairs Committee that that is a good precedent for it to follow.
§ I look forward to a future in which we continue to have the great judges of independence, courage and intellect that we have had in the past, but I would like to think that they will represent our society in a better and fairer way, and that they will enjoy its confidence.4.57 pm
§ Mr. David Heath(Somerton and Frome) (LD): I, too, congratulate my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) and his colleagues on producing an excellent report and on engendering a well informed and excellent debate on its content. My right hon. Friend was absolutely right not to dwell on the genesis of the proposals. I believe that we all agree that they were introduced in haste and, frankly, in a messy way. My great criticism is that that undermined, in some people's view, the merits of a proposal with which I wholly agree. Some of us would have gone further and created a fully fledged Ministry of justice. Indeed, every time we hear the Home Secretary speak, our resolve becomes even stronger that that should be the case. Nevertheless, creating an independent supreme court and removing the judicial process from the legislative and executive processes seems absolutely right.
§ It is disappointing that the arguments against the changes either fall in exactly the area mentioned by the hon. and learned Member for Redcar (Vera Baird)—that is, the trade union arguments of those who find themselves with a rather comfortable billet in the House of Lords and do not want to lose it—or are based on what is, in effect, blind reaction against change because people do not entirely agree with it.
§ I have listened to the arguments of the hon. Member for Hertsmere (Mr. Clappison) and the hon. and learned Member for Harborough (Mr. Garnier). They are based on the classical fallacy—if we are allowed to talk about classical fallacies nowadays—of post hoc, ergo propter hoc: because something turns out okay, it must be because of the system that created the circumstances. I simply do not accept that. To use an analogy, next Wednesday, the Under-Secretary of State may be able to point to a successfully run European parliamentary election system. If that is the case, it will not be because of the systems that he has put in place, but because of the 539WH diligence and hard work of electoral returning officers up and down the country. Similarly, the fact that we have a well respected legal system, particularly at the higher levels, is not because of the systems in place, which no one would argue for, given a blank piece of paper, but because of the excellence of the people who have made the system work from within, sometimes through self-denying ordinance, but sometimes by applying their intelligence to the issues involved.
§ No one would create a system in which the court of final appeal was a committee of the upper House of the legislature. No one would create a situation in which the country's most senior judge was a member of the Cabinet, who also chaired one of the Houses of the legislature in his spare time.
§ Mr. Garnier: Will the hon. Gentleman give way?
§ Mr. Heath: I have very little time, but if the hon. and learned Gentleman is brief, I will.
§ Mr. Garnier: Would anyone create a system whereby the membership of the US Supreme Court is selected by the President on entirely party political grounds?
§ Mr. Heath: I certainly hope not, and also I hope that we shall not use Tallahassee as a model for our own future reforms.
§ Let me deal with the substance of the reforms. The hon. and learned Member for Redcar dealt with the issues surrounding the judicial appointments commission. The lay chairman plays an important role, and I am glad that the Government are sticking with that. I am glad that we have moved away from the idea of several names being put forward and towards a single name. However, any system that emerges will not be able to do the job unless it fundamentally alters a process that creates such a distorted view and conflates the principles of merit and conformity, asserting that only "people like us" are able to do the job. That change will come not from the top downwards, but from the bottom upwards.
§ We need a judiciary that better reflects society at all levels. I do not accept that we would sacrifice merit by encouraging diversity. That is the only way to create confidence in the system among those who use it. However highly we may rate our judiciary and legal system, many people go to court and do not have confidence in the system because it is so alien to their experience. I hope that we can improve on that.
§ In terms of the creation of a supreme court, the Minister will know of the problems of not considering the Scottish dimension from the beginning. I am glad that we have had time to think harder about the effects on Scotland. However, I am still not satisfied that there is a clear legislative road map—to use the cant term—to create the simultaneous legislation required to get the supreme court up and running and effective for Scotland. Will he tell us what progress has been made?
§ There is an issue about ensuring that funding does not come via a political route through the Department for Constitutional Affairs, which does not have a UK responsibility in this specific area. We must consider other models. I was saying to my right hon. Friend the Member for Berwick-upon-Tweed earlier that perhaps 540WH an analogy with the civil list process might be used. We must find a way of ring-fencing funding. We certainly must not accept self-funding from fees. I do not accept that approach for the other courts of England and Wales—we argued against it when debating previous legislation—and I certainly will not accept it for the supreme court.
§ We must also consider the position of the staff; it is not acceptable for them to be civil servants accountable to the Secretary of State for Constitutional Affairs. I hope that we will also examine the position of the Judicial Committee of the Privy Council. This will be an incomplete reform if we do not do something about that. It is nonsensical if other judiciaries still look to the House of Lords, albeit in a different form in the Judicial Committee of the Privy Council, as their court of final appeal. If we are going to do the reform it is sensible to do it in the round and achieve the objective for all.
§ Mr. Grieve: I am astonished to hear that last comment. Presumably there are foreign jurisdictions, which, for reasons of domestic convenience or possibly because of the small amount of internal jurisprudence, clearly welcome the role of the Judicial Committee. I find it difficult to understand why the hon. Gentleman should talk about getting rid of the judicial role of the Privy Council.
§ Mr. Heath: Those nations should be offered the convenience of the supreme court of the United Kingdom as an alternative. We should not maintain a relic for the convenience of other legislatures. We must grasp the nettle.
§ Much has been said about accommodation. That single item has the capacity to undermine the entire project for the Government and expose the proposals to ridicule. I have said from the very first day that we need to establish quickly where the court is to sit. It is not acceptable for it to camp in the House of Lords or move to some other temporary accommodation. I have always advocated Middlesex Guildhall, which would be an appropriate setting.
§ I have heard powerful arguments against anything that is too closely associated with the royal courts of justice or the inns of court, because of the associations with the English and Welsh legal system, which would not be appropriate for the supreme court. Wherever it is to be, the decision has to be taken quickly. It has to be taken in the best interests of the supreme court, consulting those who will use it and taking their views into account. By the time the legislation reaches this House, we must be clear what the solution will be.
§ The independence of the judiciary is a crucial factor. We have something in the Bill now, and that is an improvement on what was not there before, but it is not the last word to be said on the subject. The historic office of Lord Chancellor had one merit in establishing the principle of judicial independence. We have to replicate that, as a Secretary of State for Constitutional Affairs will not be able to do; indeed, there is some talk of retaining the title of Lord Chancellor. I will not accept a Secretary of State for Constitutional Affairs who has to sit in the upper House and cannot be a proper Secretary of State, as I would consider it, sitting in and available to answer to the House of Commons. I understand the arguments that suggest that the continuity of the term Lord Chancellor may be of value.541WH
§ The Government's approach seems to be that the Lord Keeper of the Privy Seal is a sufficient weight of office to be used as a subtitle for the Secretary of State for Constitutional Affairs to maintain his position in the pecking order of Cabinet. I do not find that a very convincing argument. I advocated at one stage the title of Lord Keeper for the Chair of the proceedings in the House of Lords. It seemed an appropriate name; it is a historic one, and one with which people could identify. That seems to have been set aside. We need to look again at the role of the Attorney-General, and the role of the Lord Chief Justice as president of the courts.
§ The Minister may be able to tell what will happen to the Vice-Chancellor when there is no Chancellor. There are knock-on effects to these name changes, and they need to be examined—and while he is doing that, he might find out what the role of the permanent secretary is in the context of his subtitle of Clerk to the Crown in Chancery. What exactly does that mean? Why does it have to be maintained? Why is there no reference to it in the legislation? I should be interested in the Minister's response.
§ Because by the bizarre system that governs debates in Westminister Hall, those on the Front Benches have less time than anyone else to make their case, I must resume my seat at this point. I hope that we now make satisfactory progress towards these reforms, which I still strongly support, despite the Government, not because of them.5.10 pm
§ Mr. Dominic Grieve(Beaconsfield) (Con): It has been a pleasure to listen to the debate. It is greatly to their credit that the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and the Select Committee produced a fascinating report, which tried to put order into the chaos that the Government created last summer. It clearly had some influence; even if it has not influenced the Government, it has certainly taken the other place to a position that, while it may not be identical to what was being examined or advocated by the Committee, certainly reflected some of its ideas.
§ I am conscious that I have a lot of ground to cover in the time available. I start with some basic principles, which I express on behalf of my party: I could not give a fig about the separation of powers or the theoretical constructs. As far as I am concerned, if the Government want to come up with proposals for improving the higher judiciary and achieving something better than there is at the moment, the criteria are simple: will what is proposed enhance judicial independence? Will it improve the quality of justice and of judges? Will it improve the quality of government? In its role, the judiciary is a major part of Government, even if it is seen as a separate arm of the state. Will it be cost effective? That is not a negligible matter, because as politicians we must persuade the electorate that it is worth having a building that will probably cost £50 million or £100 million to house a supreme court, with running costs that may run to several millions of pounds per annum, as opposed to the extraordinary cut-price court that we have at present. That is not the most major consideration, but it certainly needs to be taken into account.542WH
§ I often agree with the hon. Member for Somerton and Frome (Mr. Heath), but although I agreed with some of what he said today, I profoundly disagreed with his critique of the absurdities of the present structures, which are borne of historical accident. Our country as it is today is born of historical accidents, and some of them are not very worthy accidents, but that is where we are and sensible people should try to build incrementally on what exists through improvement, rather than trying to overthrow the structures and citing theoretical models, as many of our continental partners have done.
§ I repeat what I said earlier: the state of the French judiciary— France is a country that I love very much—is inferior to what we have in this country. There is a greater degree of political interference and pressure in how judges carry out their functions, notwithstanding the theoretical models. That should be a cautionary tale in terms of what we are setting out to achieve.
§ There are three principal limbs to the proposals, one or two of which we have considered. I shall mention two briefly, and then focus is on the third, which, in the context of the debate, is very important. First, I can see no earthly reason for getting rid of the Lord Chancellor; he is absolutely unique and quite exceptional, and his is an extraordinary office It is true that he has turned into what he is only in the last 75 years, but this country has succeeded in creating a Minister who is also a senior judge by virtue of taking the oath—I do not think he needs to sit, which may be a function that can go—and in putting a judicial figure in the heart of Government to stand up for judicial independence. That was acknowledged by several hon. Members who participated in the debate.
§ The Lord Chancellor has an extraordinary function, which has worked very successfully, and it is nonsense to get rid of it to supplant instead the Secretary of State for Constitutional Affairs, who is already showing signs of being a highly politicised animal, which is making his role very difficult. One reason why the Lord Chief Justice is so worried about this transitional period is the pressures that he is under. We should retain the Lord Chancellor's function even if we alter some of the things that it does.
§ Secondly, there are arguments in favour of having a supreme court, but, realistically, if we set one up, apart from the fact that it may cost many hundreds of millions of pounds by the time the running costs have been assessed, I do not think that anyone will notice a substantial difference. That could be a profound reason for leaving things as they are, which is my inclination. We will not wake up with a new supreme court and suddenly think that it is radically different from what we have at the moment. Indeed, the Government's proposals make it clear that they do not intend it to be so different. The hon. Member for Somerton and Frome may be being a little more radical in saying that he wants the Privy Council to be absorbed into the court, but that might have serious international problems that he has not thought through.
§ I regret the proposal to remove the role of the Law Lords in terms of operating within a legislature. I think, as the Lord Chancellor does, that that practice creates a valuable degree of cross-fertilisation between the judiciary, the Executive and the legislature. Unless one can point out huge downsides to the arrangements, I would stick with what we have.543WH
§ The hon. and learned Member for Redcar (Vera Baird) made some powerful points about the trade unionism of the Law Lords, but the truth is that the move makes them feel uncertain. They have a status and role in the building in which they operate. They are probably fearful that, because of the rather limited role of our court of final appeal—she knows as well as I do that it is not a supreme court, and that it never will be under these proposals—the effect of their removal will be their marginalisation. They object to using the building across the road, probably because it makes them feel rather marginalised. They may be wrong; in theory, they can operate out of broom cupboard, and that is one of their great merits.
§ Symbols matter, and that is one of the reasons why great anxiety has grown. It seems capable of being resolved only by giving the Law Lords a brand new multi-million pound building where they can express themselves in a completely novel manner in a seminar setting. That is an interesting indication of how rooted the anxieties are about how the changes will affect the way in which those involved are perceived. That is another reason why we should proceed with great caution, and why there cannot be such change without the building and structures having been fully identified, although I make it clear to the Minister that I resist the principle that is involved.
§ I shall address the other important points raised by the hon. and learned Member for Redcar. As she knows, we on the Conservative Benches have said that, broadly speaking, we are in favour of setting up a judicial appointments commission, and I do not resile from that position one bit. However, it has always struck me that we have never had a proper debate about how that commission will make a difference to the manner of appointment or whether we are putting into place a rather ponderous system, and losing the flexibilities of the old one without getting anything new out of it.
§ One thing that we hope to get out of the new system is transparency. I entirely share the view of the hon. and learned Member for Redcar that the current system is not sufficiently transparent. Let me give her an example, although she may disagree about what it shows. There is no doubt that the Lord Chancellor has the merit of being very flexible in being able to pick up what I might call the vibes of what is going on in the judiciary. Following on from what was said by my hon. and learned Friend the Member for Harborough (Mr. Garnier), at the end of the Pinochet case, the Law Lords were not in a happy state. There was some indication that their corporate cohesion was in danger of falling apart. The Lord Chancellor, then Lord Irvine, intervened swiftly and carried out several not-so-minor reshuffles at the top end of the judiciary, which quickly addressed and solved the problem.
§ I ask the hon. and learned Lady whether we can make sure that any judicial appointments commission is sufficiently tuned in. and flexible to such situations. Rather than being some ponderous bureaucracy regulating appointments and then stepping back, it must be capable of intervening in the fashion that I have described, because that is one of the qualities of the system that we have at the moment. On her last points 544WH about under-representation, she may be surprised to discover that I have some sympathy with one of her points—5.20 pm
§ The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): I am grateful for your intervention, Mr. Chidgey, just at the pinnacle of the denouement of the speech of the hon. Member for Beaconsfield (Mr. Grieve). One rule in Westminster Hall is that the length of time for Front-Bench spokesmen is inversely proportionate to that dedicated to the debate.
§ I pay my own tributes to the whole of the Select Committee on Constitutional Affairs for the work and scrutiny that it has undertaken and, in particular, to its Chairman, who opened the debate in a very thoughtful and thought-provoking manner. The Government have tried to respond thoughtfully to many of the suggestions, some of which we warmed to more than others. I will try to roam through those as best I can.
§ We have had a very good debate, and my hon. and learned Friend the Member for Redcar (Vera Baird) gave a very good exposition of the case for many of the changes. It has been an illuminating afternoon in Westminster Hall.
§ Some of the key criticisms made not only in the Select Committee report, but elsewhere, were that the package of reforms for the creation of a supreme court, judicial appointments and so on were unwieldy and precipitate and that the legislative timetable was too restrictive to cope with such far-reaching reforms.
§ The criticism about undue haste is excessive. The first attempt to establish a final court of appeal separate from the House of Lords was made in the 1870s. For a reform to take 130 years would not normally be considered a sign of excessive speed in the outside world. Nevertheless, the criticism about parliamentary scrutiny of the Constitutional Reform Bill has been met by a decision in another place to refer it to a Select Committee that will report on 26 June. The Bill will then be committed to a Committee of the whole House in another place and continue through its normal legislative stages.
§ It has been agreed that the Bill will be carried over into the next Session to finish its passage in another place and that it will then be sent to this House early in the next Session. It will have therefore been considered by Parliament in two successive Sessions and will have received detailed scrutiny from a special Select Committee in another place as well as by our own very special Constitutional Affairs Committee in this House.
§ The Lord Chief Justice, Lord Woolf, made it clear that he feels that the position of Lord Chancellor, with its historic roles and responsibilities as head of the judiciary, Speaker in another place and a Minister, is unsustainable. The judges do not want to be headed by a party politician who in recent times has rarely, if ever, sat as a judge; they should be headed by someone who is a real judge. The Bill provides for the Lord Chief Justice to become the president of the courts of England 545WH and Wales and it makes it clear that he is not the Lord Chancellor. The Secretary of State for Constitutional Affairs will take on the executive functions of that office.
§ It is possible to argue that there should continue to be a Minister called the Lord Chancellor even if that Minister is not a judge and not the Speaker in another place. Lord Woolf has acknowledged that there is an emotional attachment to that view. I believe that to take that position would be misleading and confusing. The title of Lord Chancellor carries a distinguished history, and it is a very special post, combining the three arms of government—executive, judicial and legislative. The Secretary of State for Constitutional Affairs will not perform that historic role, whatever he or she is called. They will have some special responsibilities for protecting judicial independence, but they will do so as a Minister. The historic role of Lord Chancellor is drawing to a close and it is better for the title to end with it. The Secretary of State for Constitutional Affairs should be allowed to concentrate on their duties as a Minister.
§ Mr. Grieve: I am still a little puzzled by the references that the Minister made to the Lord Chief Justice. I listened to the Lord Chief Justice speak in the House of Lords on two occasions and that was not what he said. Indeed, he made it absolutely clear that he regretted the abolition of the post of Lord Chancellor, which he saw which he saw as a central protection of the judiciary. I am sure that the Minister would not want to mislead the House.
§ Mr. Leslie: I was referring to the wider reform that we are considering in the post of Lord Chancellor. It is true that the Lord Chief Justice has made recommendations about how we can enshrine the judiciary's independence. We have been trying to take on board many of those points, and I believe that the Bill succeeds admirably in doing so.
§ On the proposals to create a supreme court, we firmly believe that the creation of a United Kingdom supreme court is a necessary step to clarify the relationship between the legislature and the judiciary. It is no longer right that the highest appellate court in the United Kingdom sits within the legislature. My hon. and learned Friend the Member for Redcar made that point strongly. It has long been the case that peers other than the Law Lords take no part in judicial proceedings. Lord Bingham's statement of June 2000 severely limited the active participation of Law Lords in legislative proceedings.
§ The pretence that the House of Lords as a judicial and legislative body is the same entity is increasingly exposed as a pretence, as the right hon. Member for Berwick-upon-Tweed (Mr. Beith) implied. In fact, it is a damaging pretence. What would we think if an emerging democracy were to set up its own upper House of the legislature also as a supreme court? It is time to complete the work of those who some people seem to be 546WH suggesting are dangerous radicals, the first Earl of Selborne and the first Earl Cairns, who as Liberal and Conservative Lord Chancellors respectively tried in the 1870s to separate the House of Lords from the supreme court, but were thwarted by a Conservative backwoodsman. I believe that that change still needs to continue.
§ The funding of the supreme court was mentioned. We have included a robust clause in the Constitutional Reform Bill to guarantee future funding of the United Kingdom supreme court in a way that provides sufficient resources for the effective and efficient administration of justice, as well for management on a day-to-day basis by a chief executive. However, we believe that it is important to retain clear ministerial accountability for the expenditure of taxpayers' money and public funds.
§ On appointments to the supreme court, we have listened to the points made by the Select Committee and have changed some of our proposals. My hon. Friend the Member for Stafford (Mr. Kidney) asked about lay membership of the supreme court appointment commission. We now intend to secure at least one lay post. We have also reflected the model used for the judicial appointment commission for England and Wales, in that we see one name going forward to the Minister to recommend to the Crown as the better model to use.
§ The issue of the building and location for a future supreme court has created a lot of excitement and comment. Of course, the building has to be well equipped, suitable and not only easily accessible, but publicly identifiable as an institution that belongs to the whole public and the whole community. At the same time, we have to take account of value for money and ensure that it is not excessive in that respect. We are still looking for that building—the search continues—and we shall make our announcement in due course. It would be wrong to speculate about the potential sites on the shortlist, not least because of the need to protect the procurement interests for the taxpayer.
§ Many other points have been made, particularly about part 3 of the Bill and the judicial appointment commission for England and Wales. We believe that our proposals would improve not only the independence of that appointment process, but its transparency, although we feel that there also needs to be parliamentary accountability. That is why we have chosen the recommending model.
§ I heard what my hon. and learned Friend the Member for Redcar said about diversity issues in the judiciary. We believe that the commission is one way to improve appointment on merit, widening the pool of potential candidates from which selection can be made.
§ Our proposals are not only modernising, but are designed to enhance the independence of our judiciary. Today's debate is a foretaste of the many hours that we will spend in debate on the Constitutional Reform Bill—
§ It being half-past Five o'clock, the motion for the Adjournment of the sitting lapsed, without Question put.