[Relevant documents: Twenty-third Report from the Joint Committee on Human Rights, Session 2003–04, Scrutiny of Bills: Final Progress Report, HC 1282; First Report from the Constitutional Affairs Committee, Session 2003–04, HC 48, on Judicial Appointments and a Supreme Court (court of final appeal), and the Government's response thereto, Cm 6150.]
Order for Second Reading read.
I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
I beg to move, That the Bill be now read a Second time.
I am pleased that, after much debate and discussion in the other place, the Bill has at long last come to the House of Commons. I shall address the details of the Bill in due course, but we must not neglect the fundamental principles driving the reform, namely, the need to modernise our constitution so that our institutions can serve the public in a clearer, more transparent and more effective manner;
so that our courts and justice system can be administered by a full-time Minister clearly accountable to Parliament;
and so that the relationship between the three arms of the state—Parliament, the judiciary and the Executive—is settled, clarified and easier to understand, in turn making each better fitted to carry out its vital roles in a modern democracy.
The Bill therefore proposes the reform of the office of Lord Chancellor, removing the blurred lines between political and judicial functions, so that the post holder, as a full-time Cabinet Minister, can concentrate on the administration of the justice system, no longer sitting as a judge, and we hope no longer tied to the Woolsack in the other place as its presiding officer. The Bill sets up a new judicial appointments commission, an independent body responsible for selecting our judges in the future, and it creates a new supreme court, putting beyond any doubt the independence from politics and the legislature of the highest appellate court in the United Kingdom. There will be a clearer separation of the powers of Parliament, the judiciary and the Executive, and greater confidence in the shape and nature of each branch of our constitution.
The hon. Gentleman must wait for that section of my speech, when I shall be happy to elaborate on that particular matter—I know that he will wait patiently.
There has been wide consultation on the reforms. Many academics and observers of our constitution have long called for a properly independent judicial appointments process and a separate supreme court for the UK. The Lord Chief Justice and members of the senior judiciary support the Government, and a Select Committee of the House of Lords has meticulously scrutinised the Bill.
I am startled to hear that the Lord Chief Justice supports the Government. I recall the Lord Chief Justice saying that, given the constitutional crisis that the Government precipitated by announcing their back-of-the-envelope changes in summer 2003 without any consultation, certain aspects of the Government's proposals—in particular, the concordat, on which the Lord Chief Justice insisted—make the best of a bad job.
That is not a correct representation of the Lord Chief Justice's views. A lot of time has passed since the Bill was introduced—as I have said, it was debated at length in the other place—and the robust package of measures has wide support, including from members of the senior judiciary. We have responded to the long debate in the other place and have accepted a number of changes.
Will my hon. Friend have no truck whatever with the argument that this is a Johnny-come-lately policy? It is more than 12 years since the party of which we are members agreed the basic points in the package. Some of us think that the process has taken far too long to come to fruition, rather than its having been done on the back of an envelope in the past 18 months.
My hon. Friend makes the reasonable point that the measures are fundamental and overdue. They are important, in so far as they help to clarify the relationship between the different branches of our constitution.
Would it not have been easier to maintain the position described by Mr. Allen if the announcement had not been made before any consultation had occurred and had not been seen as a fudge? If we were starting afresh, one might believe in the process, but not after the Prime Minister made such a faux pas in the first place.
All good ideas have to start somewhere. This one started with the announcement by the Prime Minister, which subsequently resulted in numerous consultation papers and a lengthy consultation process. The process in the other place was even longer and involved accepting a number of changes to the Bill.
"a piece of great reforming legislation", and said that
"it will rank in importance with the great constitutional instruments of the past."—[Hansard, House of Lords, 7 December 2004; Vol. 655, c. 759.]
My hon. and learned Friend always has the facts at her fingertips, and I am grateful for that quote.
We have reflected on the consideration of the Bill in the other place and have accepted a number of changes. The Government accept the decision of the House of Lords on the retention of the title and formal office of Lord Chancellor. Whether the post holder is called "Secretary of State for Constitutional Affairs" or "Lord Chancellor", or whether he has both titles, is not a matter of great significance. What matters most is the substance of the post, the nature of the job and whether the position is reformed so that the post holder's duties are no longer contradictory.
If the role of the head of the judiciary can pass to the Lord Chief Justice, and with it many of the judicial functions incompatible with the role of a political Cabinet Minister, then the office of Lord Chancellor can continue, but in that substantially reformed way. The Bill continues the office of the Lord Chancellor, but in a significantly altered and more appropriate form.
Does the Minister recall that the Constitutional Affairs Committee indicated that the important point is that the office of Lord Chancellor, which it felt should continue at least for the time being, should be in position firmly to assert and protect judicial independence, particularly when senior Ministers might appear to impair and threaten it, and that the post holder must therefore be someone of considerable seniority who is not looking for further promotion?
I shall comment later on the other protections that we have added, with particular reference to the office of Lord Chancellor and the holder of that ministerial office. We have managed to strike the right balance in having flexibility for the Prime Minister in making appointments while enshrining the independence of the judiciary in its relationship with that post.
I, too, commend the parts of the Lord Chief Justice's speech on Second Reading that Vera Baird commented on, which dealt with the concordat and the manner in which the Government had carried out their proposals. Can the Minister provide reassurance that the Government will preserve the substance of the amendments on the Lord Chancellor that were drafted in another place to ensure that we retain not only the Lord Chancellor's name in carrying out the functions of the Secretary of State for Constitutional Affairs, but the added protections of his sitting in the House of Lords and being a lawyer?
I may be giving way a little too often, because I was about to come to that. Perhaps that is something that I can learn for the future.
Before dealing with the hon. Gentleman's question, I want to restate why these reforms are necessary. Under the current system, the Lord Chancellor holds potentially conflicting judicial and political roles, and sole responsibility for the whole judicial appointments process. In our view, it is no longer appropriate for a Government Minister to have such unfettered discretion in the appointment of judges. The Lord Chancellor also holds a number of outdated, inappropriate and anachronistic functions. Reform of the office will enable that Minister to focus on his and the Government's main priority—the delivery of essential public services.
The Bill gives all Ministers—particularly the Lord Chancellor—and those responsible for matters relating to the judiciary and the administration of justice a statutory duty to uphold the independence of the judiciary. It ends the Lord Chancellor's judicial functions and ensures that his responsibilities for the judiciary are exercised under new transparent statutory arrangements with the Lord Chief Justice.
We have to operate under the law as it stands, but we want to reform it. The hon. and learned Gentleman argues rather perversely that he does not like the existing system yet wants to retain it. I am not sure that he is striking the right chord.
I congratulate the Minister and the Lord Chancellor on listening to many people's concerns about the initial package that was put before both Houses last year and on adopting several of the changes. How can he ensure that the Government's commitment to equal opportunities—the Lord Chancellor is of course very committed to equal opportunities—will be transferred to the new judicial appointments commission, since the commission is under no obligation to accept what the Lord Chancellor has said?
As a broader, wider and more diverse body, a judicial appointments commission for England and Wales will have a positive and beneficial impact on the diversity of the appointments that it makes and the range of persons from whom it can select, notwithstanding that all appointments are obviously made solely on the basis of merit. I shall come to some specific points on diversity later.
I want to make a little progress first.
Part 1 concerns the rule of law and was added in the other place. The provisions ensure that nothing in the Bill adversely affects the constitutional principle of the rule of law. In making these changes, it is important that we do not lose the principles that have served us well in the past. The rule of law is one such area, and the new provisions improve and enhance the Bill.
Part 2 relates to reform of the office of Lord Chancellor. Throughout the Bill's passage in the other place, peers felt extremely strongly about the retention of the title of Lord Chancellor. Amendments were therefore made to facilitate that. As I said, although we believe that our original intention to abolish the office was well founded, we accept that many attach a symbolic value to the title. The Government do not feel that retaining the office and title of Lord Chancellor significantly affects the substance of our reform objectives, so we can accept that change.
Let me deal with the question about the insistence of the other place that the person who holds the office of Lord Chancellor must be a Member of the House of Lords and must have either held high judicial office or been a practising lawyer for at least 12 years. Given the substantially reformed nature of the post, we firmly believe that there is no longer any fixed requirement for the Lord Chancellor always to be a peer and a lawyer.
A Prime Minister should be able to appoint the best person for the job, whether they sit in the House of Lords or the House of Commons, rather than having a restricted choice. It would be perverse deliberately to prevent a person from holding a purely ministerial post simply because they were an elected representative. There will no longer be a need for the office holder to be a peer. Given that the Lord Chancellor is responsible for nearly £3 billion of public expenditure, it is surely reasonable that in future a Prime Minister can appoint a candidate who is capable of being held accountable to either House of Parliament, not just one House.
Historically, one of the requirements for the Lord Chancellor is that he is not a member of the Roman Catholic Church. Will that requirement remain or change? Why is the Lord Chancellor's oath, unlike the oath in this House, given in only a theistic way? Perhaps a future office holder might not have a religious faith.
On the detailed second point, I understand that the Oaths Acts allow for affirmation and so on. Although the Bill does not deal with that, other legislation does. On the first point, the Bill does not make the change about which my hon. Friend asked, but perhaps he can raise the matter at a later stage of its passage.
As the hon. Gentleman's party knows, there are no guarantees in politics. If the House of Commons decides to overturn the amendment, it would not be wise for the House of Lords to insist on it, but that is a natural part of the to-ing and fro-ing of the legislative process.
On whether there should be a condition such as being a peer or a senior lawyer, the Lord Chief Justice, speaking for the judiciary as a whole, has made it clear that a Minister from either House could perform the functions of the new Lord Chancellor post. The Lord Chancellor will not be a judge and no more needs to be a lawyer than the Secretary of State for Health needs to be a doctor or the Chancellor of the Exchequer needs to be a qualified accountant.
Legal qualifications are not an essential requirement for a ministerial post that will in future act on recommendations from an independent judicial appointments commission, whose job will be to weigh up candidates' precise legal abilities. The Government will also have the Attorney-General to call upon for any advice on legal questions.
I accept that there will be a judicial appointments commission. Indeed, it is the one aspect of the Bill that I am broadly happy to welcome. If the Bill had been confined to that, I would welcome it even more. However, the Under-Secretary will acknowledge that it retains important powers for the new Minister both in making a final selection and in maintaining links with the judiciary to initiate work by the judicial appointments commission in selecting new judges. In those circumstances, is not the other place correct to insist that the Lord Chancellor should be a unique Minister and not simply any Minister?
The Lord Chancellor will be a unique Minister and will have several protections, as set out in the Bill. However, I am not convinced that that extends to the absolute requirement that the Lord Chancellor must be a senior lawyer and a peer. There are no especially strong arguments given the new nature of the ministerial post. The Government will therefore seek to remove the requirements so that the Prime Minister's choice of office holder will not be so restricted.
The time has come for a more appropriate senior structure for our judiciary. The Bill establishes the Lord Chief Justice rather than the Lord Chancellor as the head of the judiciary in England and Wales. We will introduce amendments to provide similar provisions for the Lord Chief Justice in Northern Ireland.
I hesitate to get involved in this, because I must be one of the few non-lawyers in this place—[Hon. Members: "No!"] Oh, I am glad that some other peasants have got in by accident. Is my hon. Friend the Minister using the theory behind private finance initiatives, which works on the assumption that because someone knows nothing about a particular profession, they should automatically be put in charge of it? Or am I misinterpreting what he is doing?
I am not a lawyer either, but I think that having a fresh perspective on a particular responsibility is sometimes a benefit, rather than a disadvantage. There are pros and cons on both sides of this argument, but we do not feel that the post-holder should be tied to one particular qualification. That would not be justified by the nature of the new ministerial post.
The Bill also makes new arrangements for many of the statutory functions of the Lord Chancellor that relate to the judiciary. These will either be transferred to the Lord Chief Justice completely, or be exercised jointly with the Lord Chief Justice, with requirements for consultation or concurrence between them and their counterparts in Scotland and Northern Ireland as appropriate. This division of responsibilities was agreed between the Lord Chancellor and the Lord Chief Justice and is known as the concordat. Reflecting on this historic agreement, the Lord Chief Justice has commented that:
"The judiciary considers that the parts of the Bill that reflect the concordat are a highly desirable package of measures designed to ensure the continued independence of the judiciary."
He added that he
"would consider it an unsatisfactory situation if the present position were left in place."
The concordat was presented to Parliament on
The Minister referred to the "continued independence of the judiciary" being maintained. It is independent now. What is the point of this Bill, if we already have confidence in the existing arrangement?
We need to strengthen that independence further, and we are doing that by taking away the judicial role of the legislature and taking away the legislating role of the judiciary. I hope that that explains the measures to the hon. Gentleman in a nutshell.
Will the Minister now take the opportunity to accept that the original proposals did not envisage a concordat, and that the concordat was required because of the alarm of the judiciary, which was reflected in the comments of the Lord Chief Justice that, without it, this measure would constitute a serious transfer of power to the Executive that would affect the independence of the judiciary? That is why the concordat was necessary. This colours the entire nature of this debate and, particularly, the Government's bad faith in respect of it.
I am delighted that the hon. Gentleman thinks that the concordat is necessary. We do, too, and it is now on the table and part of the package that we are offering. I restate the quote from the Lord Chief Justice that he
"would consider it an unsatisfactory situation if the present position were left in place."—[Hansard, House of Lords, 8 March 2004, Vol. 658, c. 1004.]
We have taken great care to do nothing to diminish the independence of the judiciary. On the contrary, clause 4 of the Bill provides a new statutory guarantee of continued judicial independence. It creates a duty on all Ministers of the Crown and all others with responsibility for the administration of justice to uphold the continued independence of the judiciary.
"even in its original form, the judiciary was supportive of the Bill . . . as a package of reforms that would significantly improve the protection provided for their independence."—[Hansard, House of Lords, 20 December 2004; Vol. 667, c. 1555–56.]
I would not like the Minister to ruin a great legal and political career by giving too much praise to the hon. and learned Lady. Will he tell us which parts of the concordat are to form parts of the legislation, and which parts we are simply to rely on by placing our trust in the Government?
Some parts are in the Bill and some are not. That is by agreement, and we shall no doubt go through those matters at great length in Committee, much of which, hon. Members will be delighted to know, will be held on the Floor of the House. The hon. Gentleman will have plenty of opportunities to go into that issue in detail later.
The Bill also places an additional duty on the Lord Chancellor to have regard to defending the continued independence of the judiciary. That duty will also apply, for example, in his handling of the recommendations from the new judicial appointments commission and in funding and running the administration of the courts. Clause 5 amends the Justice (Northern Ireland) Act 2002 to ensure that the provisions made by that Act in relation to the guarantee of judicial independence are consistent with the provision made by clause 4.
Our judiciary will have strengthened independence, but will still have a dialogue with the Government and Parliament. In recognition of the important contribution of the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland, clause 6 provides that they may table written representations to Parliament on matters relating to the judiciary or the justice system. In addition, the Bill recognises the important role of the Lord Chief Justice in respect of the judiciary. It sets out his responsibilities, including representing the views of the judiciary to the Government, and the training, guidance, welfare and deployment of the judiciary of England and Wales.
The role of the Lord Chancellor in delivering the concordat will be fundamental. It has been agreed between the Lord Chief Justice and the Lord Chancellor that functions of the Lord Chancellor that relate to the judiciary and the court system should not, in future, be transferable away from that Minister without primary legislation. That is set out in clause 17. It is another protection that the Chairman of the Committee has mentioned.
I turn now to the question of who will act as the presiding officer of the other place. The Government continue to believe that, for a busy Minister of the Crown, sitting also as a Speaker or presiding officer over a House of Parliament is a heavy burden indeed. We therefore take the view that the House of Lords should have the benefit of a presiding officer who can devote his or her time solely to its service.
Ultimately, of course, decisions on who should be the presiding officer of the other place are a matter for their lordships themselves as part of the Standing Orders of the House of Lords, which currently stipulate that the duties form part of the role of the Lord Chancellor. But it is undoubtedly odd that any House of Parliament should automatically accept the appointee of the Prime Minister as its Speaker or presiding officer, a state of affairs not conducive to the supremacy of Parliament in our constitution. The Bill therefore helps to facilitate the process now in train in the other place about who might take on that aspect of the Lord Chancellor's current functions. The House of Lords has not yet formed its view, nor decided the title of that presiding officer.
Part 2 of the Bill therefore allows the statutory functions of the Lord Chancellor, in his capacity as Speaker of the other place, to be exercised by anyone who fills that role in future.
I hope that Members on both sides of the House will accept what the Minister says. I would put the case even more strongly, because it is surely wrong that a member of the Executive should preside in either House of Parliament. It is important to try to keep apart the roles of the Executive and the legislature, and that proposition should have the support of every right hon. and hon. Member.
I tend to agree with the hon. Gentleman on that point, although he will understand that it is for the other place to decide on the arrangements for its presiding officer.
Should not we put it on record that the so-called presiding officer in the other place fulfils a function wholly different from that performed by Mr. Speaker in this place? The other place is self-regulating and wishes to remain so. Whoever sits on the Woolsack does not exercise the power and responsibility of Mr. Speaker, and the title of that person should not be confused with that of Mr. Speaker.
I understand that there are differences between the two presiding officer functions, but that is not to say that there are not public expectations about the role of the individual who sits on the Woolsack or that he or she will not undertake presiding officer duties in the course of business in the House of Lords. It is not for us to dictate to the House of Lords, at this stage, the arrangements that it should make for its presiding officer.
If the House of Lords decides that it wishes its presiding officer—whatever he will be called—to be the present Lord Chancellor, but the Prime Minister decides that the Lord Chancellor's office should be held by a Member of the House of Commons, how will the Government square that circle? [Interruption.]
As voices off remind us, it would be very difficult to do so. However, it would be a matter for the other place to find an appropriate person to be its presiding officer.
Part 3, another fundamental part of the Bill, would create a new supreme court for the United Kingdom, separate from Parliament but with the current appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. Two principles underpin the Government's proposals for a United Kingdom supreme court: first, the functional separation of the judiciary from the legislature, and secondly, the need for greater constitutional clarity and visible independence for the United Kingdom's highest court.
The ultimate court of appeal is doing something different from the legislature; it should be doing it separately, and should be clearly seen to be doing it separately. Functional separation of the judiciary at all levels from the legislature and the Executive is a cardinal feature of any modern, liberal and democratic state governed by the rule of law.
Furthermore, the Law Lords are judges, not legislators. They are specifically appointed to act as the UK's supreme court
"for the purpose of aiding the House of Lords in the hearing and determination of appeals", in the words of the Appellate Jurisdiction Act 1876. They are there as judges and it is no longer tenable to see those judges act in the legislative role.
I emphasise that the proposals imply no criticism of the performance of the Law Lords. I know that they are admired around the world and have always acted with the utmost integrity, independence and objectivity. However, that is not reason enough to maintain the current position. The very fact that in recent years the Law Lords have had to exercise a self-denying ordinance neither to speak nor vote in the House of Lords on matters that might come before them in a judicial capacity indicates that there is something fundamentally flawed in the current arrangements, however well they may seem to work.
The hon. Gentleman was at great pains to say that nothing had gone wrong so far, yet he then said that as people do not understand that nothing has gone wrong so far, we have to change things. I do not understand what has happened to our society if we are unable to understand something that we had been perfectly able to understand, and people had been perfectly well able to run, for so many years, and which is, to quote the Minister, well known and honoured throughout the world. Why can we not go on as we have done?
Having the Appellate Committee as the highest court in the legislature has not sat comfortably for more than a century. The Appellate Jurisdiction Act, although it was not commenced, sought to establish a separate UK supreme court. For various reasons, that did not happen at the time. The initiative is not exactly new but it is long, long overdue.
It is important to remember that most of us have been dissatisfied with the situation because the Lord Chancellor, who was appointing judges, was an active party politician. Ever since I saw Lord Hailsham on the beach in his bathing costume ringing the bell for the Tory party and then claiming that he was completely independent, I have viewed the system with some suspicion.
Matters of family honour may need defending on that point, but I hear what my hon. Friend says.
Half the Law Lords are reported to be uncomfortable with the present arrangements. If we do not move to reform, how long will it be before a majority are unhappy? The time has come for our highest court to be a separate institution—not only separate, but seen to be separate. By establishing a supreme court, we shall create a visible apex of an independent United Kingdom judicial system, and we shall increase public comprehension of the judicial system, both in this country and abroad.
Politicians should stick to politics and the judiciary should stick to judging. That is the clear direction in which we are travelling and there is not a massive amount of controversy about that issue.
The Minister referred a moment ago to the fact the new supreme court would be an independent UK judicial system—I think that that was the phrase that he used—but given that the funding arrangements for the new supreme court will still be part of the Department for Constitutional Affairs' overall budget, the chief executive of the new supreme court will be appointed by the DCA Minister, and the DCA Minister will retain functions that relate to the judiciary in England and Wales, how can it be argued therefore that all aspects of the new supreme court will be entirely distinct and separate from the legal system south of the border? Surely it therefore falls foul of the 1707 treaty of Union.
The hon. Lady is wrong. First, the Department for Constitutional Affairs is a United Kingdom Department, not specifically relating to England and Wales. Secondly, the post of chief executive of the new supreme court will not be simply a ministerial appointment in the way that she describes. Thirdly, although there must be some accountability to Parliament for the taxpayers' money expended in the running and operations of the United Kingdom supreme court—ministerial accountability is therefore the way to provide that—we will provide protections separate from the normal run-of-the-mill votes and estimates that departmental budgets come under, and those resources will be ring-fenced. That will provide adequate protection for the new supreme court, so that it is seen to be independent, and is given the measure of independence set out in the Bill.
Understandable concern has been expressed about where the supreme court will be located and the cost of such a building. I am sure that Opposition Members are keen to consider that. The building for the supreme court should be a reflection of the court's importance and its place at the heart of the justice system and the constitution, yet simultaneously not excessive or lavish.
The current accommodation for the Law Lords in the Palace of Westminster leaves a lot to be desired. Their offices are cramped and inconveniently located, and constraints on the space available limit the number of support staff. Quite separately from the constitutional principles, there is a strong case for improved facilities. We have therefore considered many different building options over the past year, and after detailed evaluation and close consultation with the Law Lords, our preferred option is Middlesex Guildhall, which is on the opposite side of Parliament square from Parliament, and currently a Crown court building. We believe that it can be adapted to meet the operational requirements of a modern supreme court and provide a building of sufficiently prestigious design and location—all, of course, subject to the normal planning controls.
I certainly agree with the Minister that the Law Lords may have divided views, but before history is rewritten, the Minister must have read the speech of Lord Nicholls in respect of the supreme court and his comments, as a Law Lord, about the adequacy of the accommodation currently available in the House of Lords. Would he like to confirm whether he has done so? In fact, in that speech, the indication from one Law Lord was that he considered that the accommodation provided in the House of Lords was entirely adequate.
"I doubt if any supreme court anywhere in the developed world is as cramped as our own."
He then said that there was an
"acute shortage of space . . . I cannot see why the fourth richest economy in the world cannot" have its own building.
Lord Steyn—another Law Lord—said that
"the accommodation available for the final court of appeal" was
Different Law Lords have different views, but I do not think that by any stretch of the imagination, the hon. Gentleman is unable to envisage improvements that could be made to the accommodation for our highest court of appeal in the land—something that he will hold as a respected institution that deserves to be supported in the best way possible, to help to preserve the judiciary's independence.
The cost of establishing the supreme court at Middlesex Guildhall will be approximately £30 million, but we will also need to ensure that the criminal justice system is not adversely affected by the selection of that building. We will therefore provide additional courtrooms to handle the Crown court work currently undertaken at the Guildhall, at an estimated further cost of £15 million.
The Government are committed to implementing the new supreme court properly and to achieving value for money. That is why clause 120 contains provisions to ensure that the supreme court can not be implemented until an appropriate building is ready to receive it. Those provisions demonstrate our pledge that we will not implement the supreme court arrangements prematurely.
Again, I do not think that is a fair categorisation. No building is absolutely perfect. I have long preferred Middlesex Guildhall, and I know that others hon. Members have reached that conclusion. It is seems an obvious conclusion to draw. The building is already there, we can see it and we know what it looks like. It looks right, it feels right and it is in the right location. It is my preferred option—but of course, it remains subject to the normal planning constraints that we have to go through. It remains a preferred option at this stage while we make sure that all those processes are undertaken properly.
The Minister is most generous in giving way again. Paragraph 330 of the explanatory notes—I recognise that they are only advisory—states that
Will he clarify whether these additional courtrooms will be located in the Middlesex Guildhall or in an entirely different building somewhere else in London?
The latter. The courtrooms would have to be located somewhere else, but they will be in London.
I want to mention briefly other aspects of this part of the Bill. Clauses 22 to 28 set out the arrangements for the selection of members of the supreme court. Clauses 45 to 50 also make provision for the governance of the court to be as independent as possible—I answered that point earlier in response to a question from the hon. Lady—so that it is compatible with its position as a body in receipt of public funds. As a logical consequence of the separation between the judiciary and the legislature, clause 109 restricts the rights of Members of the House of Lords to sit and vote, for as long as they hold full-time judicial office.
I know that it is boring for the Minister to have to explain himself, but that is what he is here to do. I want to ask about clause 65, entitled "Exercise of powers to reject or require reconsideration". The judicial appointments commission will be able to put up a name to the Minister and he will be able to reject it. However, clause 65(2) says:
"The power of the Minister . . . to require the selection panel to reconsider . . . is exercisable only on the grounds that, in the Minister's opinion—
(a) there is not enough evidence that the person is suitable for the office concerned, or
(b) there is evidence that the person is not the best candidate on merit."
Those are rather interesting expressions. What sort of evidence is the Minister is likely to have that the commission will not have had or considered? What is it about the merits of the candidate that may not attract the Minister but may have attracted the commission?
I happen to think that the drafting of clause 65(2) is pretty good, in that it does not go unnecessarily into the definition of that evidence, and keeps it fairly broad, but is challengeable also. For example, evidence could be that knowledge of a criminal conviction has emerged that was not available to the judicial appointments commission. That is the sort of issue, but we will go through some of the particulars in Committee.
Part 4 creates a judicial appointments commission and a judicial appointments and conduct ombudsman for England and Wales. Selection must be solely on merit, but this part of the Bill also sets out the process to be followed in appointing judicial office holders and in providing for complaints to be made to the ombudsman. It also makes provision for a new disciplinary process in relation to the judiciary. The Government believe that creating a judicial appointments commission for England and Wales will itself send a powerful message that judicial appointments are to be open, transparent, accessible, and removed from the control of a single Minister. It will also help to promote equality and diversity among those appointed to our judiciary.
Although the quality of our judges is not in doubt, the means by which they are appointed is out of step with public expectations regarding the way in which government should work. Our current arrangements have produced a judiciary that, although excellent in many ways, is startlingly homogenous. There are hardly any solicitors, few women lawyers and only one ethnic minority lawyer in senior judicial posts. I cannot believe that that is representative of the pool of legal ability or talent available for appointment. I am confident that the new judicial appointments commission will provide an appointments system based on merit alone. Crucially, however, as I said earlier, a broader appointments process will help to recognise merit from the wider pool of talent available, thus drawing on the full diverse range of those qualified for judicial appointment, regardless of their gender, or social or ethnic background.
As I indicated earlier, although this part of the Bill will require close scrutiny, we support the broad thrust of it. Given that it is one of the main pillars of an important constitutional Bill, will the Minister explain why virtually none of it will be debated on the Floor of the House?
The aspects of the Bill to be considered in Committee on the Floor of the House and Upstairs in a Committee Room will ultimately be voted on by the House. The House will make its judgment, but I believe that we are following convention.
The Minister says that merit is the primary consideration, so I am puzzled why there is conflict between that concept and the range of other matters that the Minister particularised, such as diversity. Such conflict does not seem to exist. If the measure is about merit, why is he introducing a wider system because surely that undermines that concept?
I think that I understand the hon. Gentleman's argument, but I hope to persuade him that he is wrong. If one makes a choice from a narrow shortlist, one can make an appointment on merit. However, if the pool of those encouraged to apply were broader and a wider range of applications were encouraged—I think that the judicial appointments commission could help to devise new ways of achieving that—appointments on merit could still be made, while helping to expand the diversity of, and equality of opportunity for, those who put themselves forward for appointment. I do not think that the two concepts are inconsistent. At the heart of the reforms is our drive to build further on people's confidence in key institutions such as the judiciary.
On a point of order, Mr. Speaker. Of course, it will not be possible for the House to debate the programme motion to which the Minister referred, because of the changes that have been made to our rules. Have you received a request from the Leader of the House to come here to explain why, with his programme motion, he is breaking a constitutional convention that has been in place since 1945 and has applied to every constitutional measure of first-class importance under this Government? This is the first time that the Government have tried to break that important precedent, and they will not even explain themselves.
You have made it clear, Mr. Speaker, that this is a matter for the Minister, so why have the Government broken the convention? It is slightly disingenuous for the amiable Minister to suggest that the House will decide, because the Government have tabled a motion—which means that they have effectively made their decision. What is the defence for such an extraordinary unconstitutional move?
I am afraid that the decision to accept the programme motion will be taken not by the Government but by the House. The House of Commons will decide how to scrutinise its business.
I shall make a little progress.
We are fortunate that our judiciary has an exceptional reputation for intellectual ability, integrity and independence. Judges play a key role in the justice system and it is vital that the public should have confidence in them. To achieve that, we need to ensure that there is complete confidence in the way in which the judiciary are selected and appointed. Of course we need a system that selects the best people on merit, but it must do that in a modern and efficient way.
May I take the hon. Gentleman back to the question asked by my hon. Friend Sir Patrick Cormack? The hon. Gentleman could at least explain why the Government's proposal is inconsistent with past precedent.
The Minister made a serious assertion in his last comment to my right hon. and learned Friend Mr. Hogg. It is unusual for a Minister and a Government to put a guillotine motion on the Order Paper, no less. On a constitutional Bill, there is no opportunity for the House to express any opinion in advance of the vote, which will be whipped, as to the reasonableness of the timetable according to which the Bill is being forced through.
The hon. Gentleman has long-held, strong views on programme motions, and I do not want to rehearse those again. He has his opinion; other Members have theirs. I remain of the opinion that the balance of consideration in Committee of the whole House and in Standing Committee is right, because, as in the other place, the Bill's most important constitutional aspects will be given an ample airing on the Floor of the House.
What a strange turn of affairs if the main point of contention from Opposition Members is the time allocated to the debate rather than the substance of the Bill. Indeed, we have probably spent more time on the interventions about whether the programme motion has the correct division of time between the Floor of the House and the Standing Committee than we have on the Bill. Conservative Members need to get a little perspective on the issue.
Almost everything that the Minister has mentioned, from whether the Lord Chancellor should be a lord, and whether he should be a lawyer, to the transfer of functions—all the points of detail that he has prayed in aid as being of interest to the House—will not be discussed in Committee of the whole House. How can he justify that?
I thank the Minister, whose courtesy is renowned, for giving way. He has told us that the Bill's purpose is primarily to address the fact that people outside do not understand the complications and what appear to be the contradictions in our present system. Does he not understand that the same is true of what he has just said? People outside will not understand why there is no procedure whereby we will be able to discuss, on the Floor of the House, a major constitutional change. He is arguing one thing in the case of the whole Bill, and exactly the opposite in this case. That is why we have spent so much time on the point.
We will have to agree to disagree on the matter. It is not true that we will have no opportunity to debate the judicial appointments commission on the Floor of the House, because as the Bill progresses through its parliamentary consideration there will, of course, be Report stage, when we will be able to look in detail at many of those matters.
I want briefly to mention the operation of the judicial appointments commission, which will select judges for appointment in England and Wales. It will be composed of 15 members: six lay members, five judges, one solicitor, one barrister, one tribunal member and one magistrate. The chair will be a layperson, emphasising independence both from the judiciary and from the Executive. The commission will recommend to the Lord Chancellor one candidate for each vacancy selected, solely on merit. No one will be appointed who has not been selected by the commission.
The Lord Chancellor will have a very restricted role: he or she will be able to reject a candidate once and to ask the commission to reconsider a selection once, as I said in answer to an intervention by Mr. Garnier. The arrangements will ensure that the role of the Lord Chancellor is transparent, but that there is necessary ministerial oversight and involvement to ensure proper accountability to Parliament, which is of course sovereign.
At present, the Lord Chancellor has statutory powers to remove judicial office holders below the High Court on grounds of incapacity or misbehaviour. Those powers will be reformed so that they can be exercised only with the agreement of the Lord Chief Justice. The Bill places all matters of judicial discipline and removal on a transparent statutory footing and provides a structure that reflects a proper balance between the independence of the judiciary and democratic accountability for the judicial system. The current role of Lord Chancellor will be shared with the Lord Chief Justice. No removal or other disciplinary action can be taken by one of them without the agreement of the other. None of those powers will displace the existing role of Parliament in the removal of the most senior members of the judiciary, in those exceptional circumstances.
The Bill will also permit those who are dissatisfied with the administration of the complaints procedure established by the judicial appointments commission to seek review of the operation of the process by a judicial appointments and conduct ombudsman.
Part 5 of the Bill takes account of the reform of the office of the Lord Chancellor in Northern Ireland, building on the provisions already made for that jurisdiction. Part 5 makes provision for the removal of judges in Northern Ireland in the period prior to devolution of justice to the Northern Ireland Assembly.
In Committee, we shall no doubt debate these provisions in much greater detail, but fundamentally, the principles and rationale for the legislation are clear and simple—
The Minister has sought to deal with the Bill sequentially, but will he press the rewind button for a moment? I would like to take up the issue of the provision in clause 16 for the transfer, modification or abolition of the functions of the Lord Chancellor by order. I am in a difficulty from which I hope the hon. Gentleman will be able to extricate me. Given that the Lord Chancellor has a visitatorial function—a responsibility for interpreting and acting as arbiter in a number of disputes, notably, for example, in universities and hospitals—can the hon. Gentleman tell me how that role relates to and/or differs from comparable responsibilities of the President of the Council, the Leader of the House? What is the nature of the reform that the Government envisage?
Many of the visitatorial functions of the old office of Lord Chancellor are not appropriate to the new ministerial office. Many of those will revert either to universities or to the other appropriate office holder—the Secretary of State responsible for those particular policy areas. That is one of those matters of detail that I again suggest would be better aired in Committee.
I admit that this is a matter of detail. The hon. Gentleman and others may think that I am being pedantic, but I happen to think that the matter is important, and I do not disagree with what he has just said. In saying what he has about the rather anachronistic character of some of the responsibilities, does he accept that it would be a bit of an anachronism for the Leader of the House, notwithstanding his multifaceted talents, to have responsibility for arbitrating on disputes in universities? Surely the right hon. Gentleman's time would be better devoted to other responsibilities.
The hon. Gentleman may well have suggested a worthwhile debate. I agree that my right hon. Friend has multifaceted talents, and I am glad that the hon. Gentleman has recognised that.
To return to the principles of the Bill, its rationale is clear and simple: a modern footing for the relationship between the Government, the judiciary and Parliament; an end to the potential conflicts of interest between the political and the judicial realm; a restatement and strengthening of judicial independence; better courts administration, with a full-time Cabinet Minister overseeing £3 billion of public expenditure; and clearer responsibilities for the vital functions of a modern democracy.
Our constitutional history is among the longest and most illustrious anywhere in the world. It has evolved gradually but constantly over the centuries. Change and reform is therefore a core feature of our system of governance, not alien to it. These changes, too, will further enhance and improve our constitution so that it is fit for the 21st century. I commend the Bill to the House.
On a point of order, Mr. Speaker. I apologise for raising this matter, but I wonder whether there is anything that you can do to protect the interests of the House. We have just heard that this is a major constitutional Bill of enormous and far-reaching importance—an historic Bill, whatever one's view of it—yet despite the Minister's assurance, the House will have only three hours on the Floor of the House to debate the most fundamental aspects of the measure. Can you do anything to make representations to those who have brought the Bill before us to ensure that the House—your House, over which you preside—has a proper opportunity to discuss those important matters?
The hon. Gentleman asks me to do something in which the usual channels should be involved. The Whips are obliged to listen to Back Benchers, especially senior ones. I know that the Government have a majority, but we are in danger of pre-empting the decision on the programme motion, which is not for me to do.
I beg to move,
That this House
declines to give the Constitutional Reform Bill a second reading because it creates a costly and unnecessary Supreme Court exercising the same functions as the current Law Lords;
is based on the false premise that the separation of powers between the judiciary and legislature requires the physical removal of the Law Lords from Parliament;
fails to demonstrate how the proposed Supreme Court would exercise its functions with any greater degree of impartiality, independence and integrity than the Appellate Committee of the House of Lords;
will deny Parliament the experience and expertise that the Law Lords bring to debates and legislation;
and notwithstanding the benefits of a Judicial Appointments Commission, offers no convincing justification for replacing a system that works well.
I move the reasoned amendment with considerable regret, because I am by no means averse to the idea of evolutionary constitutional reform, and certainly not in respect of the judiciary and its appointments system, or of the operation of the House of Lords and the role of the Lord Chancellor. Far from it. As Mr. Allen said, it has always been a subject of legitimate public debate. Constitutions will survive the test of time only if they adapt. I have no difficulty with those arguments, but we cannot get away from the fact that the manner in which constitutional reform of a major kind was introduced was disastrous—disastrous for the reputation of the Government, disastrous in terms of undermining the independence of the judiciary, which it involved at its outset and disastrous in the whole manner of its announcement.
In early 2003, we were assured by the previous Lord Chancellor that the Government on whose behalf he was speaking had no intention of changing the current systems in respect of the Lord Chancellor and the Supreme Court. In summer 2003, an announcement was made on the back of a Cabinet reshuffle—an announcement of which, it has become apparent, the Lord Chief Justice was informed only a few minutes before it was made. It was obvious that the Cabinet Secretary, who is supposed to steer Ministers, in particular the Prime Minister, away from serious pitfalls, had not been consulted. The announcement envisaged the immediate axing of the office of Lord Chancellor. It was a back-of-the-envelope job and within 24 hours we had the bizarre scene of the person who had announced that, whatever he was, he was not the Lord Chancellor, having to go the royal courts of justice to take the Oath of Allegiance to fulfil precisely that role. Not only was the spectacle unedifying as a piece of history, but it colours my approach to the Government's handling of the matter and the degree of trust that I place in the Government's delivery of their promises on it.
I agree entirely. There were, I believe, more than 500 such statutory references that could not be expunged by the executive fiat of the Prime Minister, but whether the right hon. Gentleman was badly advised, I do not know. I have a funny feeling that he was not advised at all. I think that he concocted the change in cahoots with the present Lord Chancellor on the back of an envelope—or certainly over a glass of good claret. I cannot imagine what else what else was going on.
The position is clear. We are committed to the preservation of the office of Lord Chancellor in a form in which he is both a lawyer and a Member of the Lords. That is fundamental, and I believe and trust that we would take action to restore the office. As for the supreme court, we must see what the position is when a Conservative Government come to office. [Interruption.] I must tell the Minister that our position, too, is straightforward. If the supreme court has not been set up, I assure my hon. and learned Friend that we do not intend to set it up. It is unnecessary, for reasons that I shall explain.
Will my hon. Friend return to his point about the proposal being made on the back of an envelope? Is it not likely that it was introduced in that peculiar way, given that the creation of both the Office of the Deputy Prime Minister and the Department for Environment, Food and Rural Affairs was worked out on the back of an envelope to satisfy individuals, rather than for the better governance of the nation?
I agree. A number of people were satisfied with the reform of the office of Lord Chancellor. The present Lord Chancellor seemed to be pleased with his promotion. Notoriously, the previous Home Secretary, Mr. Blunkett, was filmed at the entrance to the Home Office embracing the present Lord Chancellor, who was about to carry out his new duties. The right hon. Member for Sheffield, Brightside was overheard to say sotto voce, "Now at last we will get the judges we want." Another reason why I find it hard to trust the Government on this issue is that, in the initial stages of reform in the period immediately after the announcement of the back-of-the-envelope proposals and the ensuing fiasco and back-tracking, the judiciary, who certainly did not wish to be dragged into the argument—none the less, they were—were under the impression that the proposals as they stood were the most serious threat to judicial independence in their lifetime. That was apparent from their response.
I accept that, since then, the Government have taken steps to satisfy many of the judiciary's anxieties, but it is extraordinary that a Government committed to human rights and the rule of law should, in the summer of 2003, have introduced a series of proposals that threatened to undermine both. However, I have ceased to be surprised at the way in which they operate, because although they are loud in their rhetoric about trying to improve and modernise, the reality is a constant accretion of centralising control to Ministers—that has been their absolute and consistent hallmark.
Before we leave the question of what a future Conservative Government, if there is one, would do, will the hon. Gentleman explain something? I am not a lawyer but, as I understand it, if we do not have a supreme court and a clearer separation of powers, it is only a matter of time before someone goes to the European Court of Human Rights and argues that case. Is it the intention of a future Conservative Government to take us out of human rights legislation?
The hon. Gentleman has made a perfectly reasonable point, but the problem that he identified is a fiction. Many of the Law Lords who considered that problem decided that it was most unlikely to arise and I believe that, if such a challenge was mounted in Strasbourg, the margin of appreciation allowed for a country's individual judicial system would enable our arrangements to stand the test without difficulty. The only issue that might have presented problems was the Lord Chancellor sitting as a judge, which is why, as the Minister knows, we have always been consistent in the view that that was a practice that could be ended as part of the evolutionary change. I disagree with the analysis of Mr. Soley of what would have happened, or what would happen—after all, we have not brought these changes about—if we left the Law Lords as they are at present.
The Minister said that it is wrong that judges should have to exercise forbearance in what they say, but the reality is that judges have to do so at almost every moment, including in private conversations and at dinner parties. I do not think that that made any difference and they succeeded in managing membership of the House of Lords and active participation in it without difficulty. I shall return to that point.
The hon. Gentleman will appreciate that there is a real academic conflict in respect of what he has said and that there might be something in the assertion of my hon. Friend Mr. Soley. There is a respected school of thought that says that having judges in the legislature at all is capable of breaking the convention.
I accept that the hon. and learned Lady makes an arguable point. We continue to have judges in this legislature. We have recorders who sit in the Crown court. That is a point to be borne in mind. Indeed, we have deputy district judges sitting in the House, quite apart from the other place. I do not believe that that presented a problem. I was sufficiently happy, as I shall explain, with the existing system, not to have wished to see it tinkered with.
I intervene as a Member, not as a recorder who happens to be a Member.
Before my hon. Friend allows himself to be too far seduced by Mr. Soley and his arguments, he will remind himself of the European Court of Human Rights case dealing with the Bailiff of Guernsey. He will remember that, while the case led to the change in the arrangements in this country over assistant recorders and so forth, that Court did not criticise the British system of having a Lord Chancellor who happened to be a member of the political class.
It strikes me that we are getting into this groove because we are different and because it is thought that we should conform with everybody else's constitution. I hope that the Conservative party, above all, will ensure that it sticks up for what is good in this country and not allow the Labour party to wash all over us the slack intellectual guff that it seems to be seduced by.
I agree entirely with my hon. and learned Friend. I want to reassure him. I am proud of our constitution and of the fact that it has stood the test of time, worked well and evolved pragmatically.
I say to the Minister that I could not give a fig about the separation of powers. It is an 18th-century concept that was put together by a French philosopher who came over to this country and misunderstood the way in which the system worked. Particularly, he was amazed that members of the judiciary, even then, exercised their powers independently and concluded that they were separate. What is of concern to me and to others is that the independence of the judiciary should be preserved. The separation of powers has nothing to do with it. Indeed, it is a concept that, on the whole, we have ignored and I think that we have been right to do so.
My hon. Friend is making a robust and intellectually impeccable case. Is not the natural conclusion of everything that he says that the next Conservative Government would be exceptionally unwise to proceed to a second House that was 80 per cent. elected, which would, in effect, abolish the House of Lords?
I agree that any step by any Government in respect of the constitution of the House of Lords that erodes its independence, its independence of thought and independence of action would be massively undesirable.
I return to the slightly more restricted area of the judiciary and specifically to the office of Lord Chancellor. The Government proposed its entire abolition. They were then willing to listen to the representations made in the other place on the preservation of the name as the title of the Minister who fulfils the functions, but that is to all intents and purposes a valueless concession. I am interested not in symbols, but in practical reality. The practical reality is that, by a mixture of accident of history and the development of convention, we have succeeded—or had succeeded, until summer 2003—in creating an exceptional institution and one that ensured that, at the very heart of Government and of the operation of the Executive, there was a permanent champion of the independence of the judiciary capable of standing up for its independence and its rights, and it worked.
It did not matter whether Lord Hailsham rang his bell on the beach—I think it was actually on the podium—when he was a party chairman. It did not matter that Lord Gardiner had been an active member of the Labour party prior to his appointment. When somebody was appointed Lord Chancellor, went to the royal courts of justice and took the judicial oath, he was effectively transformed and became in his attitude and outlook quite different, commanding respect to such an extent that every time one asks the question, which the Minister answered earlier, whether actions by previous Lord Chancellors over the past 25 to 30 years in the appointment of the judiciary or their dealings with them have been faulted, the answer comes back entirely in the negative. To take that institution and smash it to pieces, which is what the Government proposed to do at the outset, without providing for an adequate replacement—as I shall explain in a moment, the replacement is in many of its aspects seriously flawed—strikes me as extraordinary.
My hon. Friend has been referring to the office of Lord Chancellor. He made some very kind remarks about my right hon. Friend, my father. Does he accept that one of the reasons why the Lord Chancellors were always effective in the role that they performed was, first, because being in the House of Lords, they could not look to preferment in this place and therefore were not the subject of patronage in that sense, and secondly, because as a general rule they had come to the end of their political or their legal career and did not give two hoots?
My right hon. and learned Friend is right. Having taken the judges' oath, Lord Chancellors had nowhere else to go. There was no further appointment in Government that they could fulfil that would be of an active political kind, or, short of sitting as a Member of the Committee in the House of Lords, any other function in their profession as lawyer to which they could return. I am convinced that it was a powerful and effective tool in promoting their independent viewpoint. Of course it was always possible that they could be sacked by the Prime Minister and replaced, but their replacement underwent exactly the same metamorphosis when he went down the road to the royal courts of justice to take the judicial oath. This is not just an abstract matter. It worked in practice, as the Minister acknowledged.
When we consider the office of Lord Chancellor and whether it is worth preserving, I point out to the Minister, first, that if it worked well but there were flaws in it—the particular flaw identified by the Minister and some others is that the Lord Chancellor sat actively as a judge, as opposed to just appointing judges—that is a matter that can be remedied. Secondly, as I made clear to the Minister at the outset, if the needs of transparency merit a judicial appointments commission, there was no reason why the Government could not go ahead and create that commission while preserving the office of Lord Chancellor, sitting in the House of Lords, taking an oath of office, not sitting as a judge and remaining legally qualified.
Whether my hon. Friend noticed it or not, the Under-Secretary of State for Constitutional Affairs, the hon. Mr. Leslie looked genuinely quizzical and even disbelieving at the idea that someone who had once been a party politician and became Lord Chancellor could change in attitude and outlook according to the new post he occupied. Does my hon. Friend agree that it is curious that the Minister should be so disbelieving, for there is an obvious precedent much closer to home? I refer to the fact that in our parliamentary process someone who has long been a party politician subsequently becomes Speaker of the House.
I agree entirely with my hon. Friend.
It is a curious feature of this Government that they distrust and dislike convention. Convention is a system by which people behave in particular ways or do particular things, not because any rule is laid down that they should do it, but because they know that it is expected of them and believe that they would face massive public disapproval, and, quite apart from anything else, a lowering of their self-esteem, if they did not. I happen to believe that that is one of the really remarkable things that we have in this country. It is one of the things that make me proud of being British. I compare that with the situation in other countries, including one with which I am closely linked, where I do not think that such a system prevails. Therefore, it is something to be nurtured, enhanced and celebrated, yet the Government have shown themselves consistently incapable of doing that. We have an example of that today, because it is the convention that a Bill of this importance should be taken on the Floor of the House, but the Government, in so far as they are concerned with convention, could not care less, so we will not do that.
This is an important point. Will the hon. Gentleman therefore tell me why the Conservative party accepted the fact that a major constitutional Bill of this kind, which is very important, should be dealt with in the way that has been proposed by Her Majesty's Government? They must have had talks with the Ministers concerned.
I can reassure the hon. Lady that we have not. We shall vote against the programme motion and if in the course of this afternoon I can persuade the Government by my arguments to revise their proposals, I assure her that I shall be delighted. The entire Bill should be taken on the Floor of the House. It would need about four days, no more. It could be done simply and straightforwardly, and that would allow for the maximum participation by right hon. and hon. Members .
Mrs. Dunwoody is herself an example of the importance of convention. The attempt to remove her as Chairman of a Select Committee was clearly unacceptable. The Government behaved perfectly legally, but in a way that all convention spoke against. Is it not true that convention is a civilised way of running a Government and a Parliament, and do we not get rid of it at our cost?
I can tell the hon. Lady that the negotiations failed, because our proposal that the matter should be taken on the Floor of the House in the ordinary way was rejected by the Government, who have tabled a motion, on which we shall vote after Second Reading, insisting that large chunks of the Bill should be taken Upstairs. It is of more than abstract significance. It is extraordinary. The Minister spoke earlier about the importance of the new judicial appointments mechanisms in terms of the point at which the Secretary of State for Constitutional Affairs/Lord Chancellor would have a choice to accept or reject a nomination. The hon. Lady may agree that that is an important point. It is in clauses 64 and 71, but those clauses will not be considered on the Floor but Upstairs. Even now, the Minister has time to change his mind and ensure that those clauses are considered on the Floor.
I will advise my hon. Friends to vote against the programme motion this evening and was not consulted on whether any or all of the Bill should be taken Upstairs.
I am sorry to hear that the hon. Gentleman was not consulted, because he should have been. I understand that a discussion took place with Government representatives and that no meeting of minds occurred. The sensible course of action is for the entirety of the Bill to be considered on the Floor.
The Government's attitude to the question is exposed by motion 3 on the Order Paper, which states:
"CONSTITUTIONAL REFORM BILL [LORDS] (PROGRAMME) [No debate]".
"No debate" is in heavy type. The Government do not like debate and being held to account. They want to force us to take on everything that they push forward, irrespective of what the public and the House of Commons think.
I agree with my hon. and learned Friend. It is regrettable that we cannot debate the programme motion and, although the situation is still unsatisfactory, that is why we are seeking to touch on the matter here on Second Reading.
Moving on from the question of the Lord Chancellor, if the Minister is prepared to accept the amendments, which were tabled and voted on in the other place, to the effect that the Lord Chancellor should remain in the House of Lords and be a lawyer, a meeting of minds will occur between Conservative Members and the Government on that part of the Bill. The Minister may have great difficulty getting the Bill through Parliament unless that concession is made. The Bill started in the House of Lords, which is a good reason why the House of Lords should have some say on how it is finished.
I hope that we can persuade the Minister to make a small but significant change in Committee to ensure that the Lord Chancellor/Secretary of State for Constitutional Affairs is not a politician on the make and not subject to the inevitable political pressures in respect of the judiciary. Such political pressures are generated, often understandably, in this House and they are thoroughly undesirable if they influence the decisions of individual judges. That change would ensure that the independence of the judiciary is maintained. The Minister may argue that the concordat is sufficient, but the concordat is valueless unless good will exists. The best way in which to generate good will is to have the highest standards, which would come from the preservation of a large part of the substance of the office of Lord Chancellor as well as the name.
Is the hon. Gentleman aware that the qualification in clause 3 that the Lord Chancellor must be a lawyer, which is likely to be met most of the time, also requires that person to be a High Court advocate under the Courts and Legal Services Act 1990? I may be wrong, but that seems to be the requirement. That would exclude, for instance, a senior solicitor who has not bothered to obtain that qualification because they are not engaged in that kind of practice. Is that not an undue restriction on the available pool of post holders?
I am broadly content with the legal qualification in clause 3. If it concerns the hon. and learned Lady, it is precisely the sort of area that can and should be examined in Committee, but it is not the main issue.
In a moment, I shall discuss how the judicial appointments commission will function, but the person who fulfils the ministerial office—I shall be interested to hear the Minister's view in Committee—must take a close interest in the judiciary and its career structures, who is doing well, how the judiciary operates on a day-to-day basis and any problems that the judiciary may have. As the Minister will confirm, one of the key roles of the Lord Chancellor that remains in the Bill is that of initiating the process by which the judicial appointments commission becomes operational, as well as having an ultimate power of veto over certain appointments.
Does my hon. Friend agree that one of the chief functions of our Lord Chancellor is to constitute a source of advice and influence that can be set against the Home Secretary? As that is usually to do with constitutional or criminal law, is it not rather important that the Lord Chancellor should have some professional expertise in that field?
My right hon. and learned Friend pre-empts my next words. He is of course right.
As I said at the outset, having a judge representing the judiciary in the heart of Government is among the principal important functions that the Lord Chancellor has fulfilled. After the events of summer 2003, the judiciary expressed great anxiety about the political pressures on it that were building up. The downgrading, in effect, of the office of Lord Chancellor into that of a minor Minister was beginning to have an impact on the judiciary's sense of independence. We saw that when the then Home Secretary told the House that magistrates should go to public meetings to be told how to perform their functions, and when, in extraordinary fashion, he started to usurp the power relating to how the Crown Prosecution Service should operate. As my right hon. and learned Friend may remember, that was the subject of a statement or urgent question in this House. The actions of the Home Office gave rise to great concern about whether judicial independence could and would be maintained. These are not just abstract problems.
The Lord Chancellor is not symbolic and his role should be reinforced. I am convinced that if the Government see sense on this, they will have no cause to regret it. I cannot see any problem for them in keeping the Lord Chancellor in a status that means that further preferment will not be open to him. That is advantageous—but substituting a Minister on the make is an enormous mistake.
The hon. Gentleman disparages all Ministers who are neither lawyers of large significance nor peers as "Ministers on the make." Can he justify having this legal qualification for the new ministerial post by explaining why he, for instance, would be superior to, say, his colleague David Davis, who does not have such a qualification?
The Minister completely misunderstands my point. There are two separate issues. First, the office holder should be in the House of Lords and should take an oath that disqualifies him from further participation in Government thereafter—that is valuable and has nothing to do with his legal qualifications. Secondly, he should be legally qualified because his role is intimately involved in the selection of the judiciary and the knowledge of how the judicial system works. Thirdly, as my right hon. and learned Friend Mr. Hogg said, he should provide a lawyer's input into the issues of judicial independence that he is there to maintain. For all those reasons, I would keep the office of Lord Chancellor as provided for by the Bill as amended in the other place.
I told the Minister at the outset that we support the principle that a judicial appointments commission should be set up, so many of the comments that I wish to make can be reserved for Committee. However, it is worth bearing in mind one or two key points. If the commission is to work, it must have sufficient flexibility to be able to respond rapidly to any given situation. For example, it is well known that at the end of the Pinochet case, the then Lord Chancellor realised that the House of Lords faced difficulties. He therefore carried out a musical chairs reshuffle, which worked superbly. He appointed a new senior Law Lord and a new Master of the Rolls and the consequences were widely appreciated. I have a concern—which I hope the Under-Secretary will note, even if he does not respond to it later in the debate—that the commission should have sufficient flexibility to act, if necessary, with similar finesse. That is important, because when one examines the bureaucratic structures that are being set up there must an anxiety that, however worthy the aims of the judicial appointments commission, it will not have the ability and flexibility to move in that fashion.
Earlier, my hon. and learned Friend Mr. Garnier mentioned the appointment of the new president of the family division. I make no criticism of the appointment, which appears to be unusual and, we hope, creative. However, I am bound to say that it was possible because, for better or worse, of the ability to make decisions in a highly flexible manner. I therefore need reassurance that appointments by a judicial appointments commission can have similar flexibility. I hope that the Under-Secretary will accept that as a seriously made and well-intentioned point. There is no point in our ending up with a rather ponderous organisation that fails to deliver the necessary flexibility to ensure that the higher echelons of the judiciary can be so moved around that people are happy in their jobs, that it functions well and that there is public confidence in it.
I am grateful to my hon. Friend for giving way because he allows me to clarify a point that I made in an intervention. I believe that Lord Justice Potter will make an extremely good president of the family division and I have no criticism of his judicial qualities. However, I am worried about the illogic of the Government's position. On the one hand, they advocate modernisation of the judicial appointments system, yet on the other they appoint a judge—as it happens, an excellent judge—by old-fashioned means. I heard the Under-Secretary's comments, but it is deeply unconvincing of him to try to advance one argument after the Bill is enacted, yet rely on the much-criticised system that pertains before enactment.
My hon. and learned Friend is right that there are strange standards in the Under-Secretary's approach. However, in fairness to him we are considering one argument that shows the merit of a judicial appointments commission and why I support it. However, we need to consider flexibility carefully.
There is another concern. The Under-Secretary said that any appointment would be made on merit. Indeed, it must be on merit. I am not worried about the desire to expand the pool of talent—many people hide their light under a bushel and such talented individuals should be brought forward and considered. However, there is a narrow dividing line between that and engaging in a form of engineering that rapidly leads the public to conclude that appointment on merit is not happening. We need to consider that carefully because although I am as keen as the Under-Secretary to ensure that those with merit who are qualified are appointed from all sections of society, merit must nevertheless be central and any attempt to dilute it must be examined with great caution.
I was pleased to hear the hon. Gentleman set out the importance of merit and his appreciation, which I am sure was implicit, that the wider the pool, the better the calibre of candidate. Is he ready to confirm that the current system is not the best because, historically, positive discrimination has taken place in favour of white men from Oxbridge colleges and public schools? That is unfair and does not constitute promotion on merit alone.
I hesitate to join the hon. and learned Lady in that criticism. I simply point out that the Under-Secretary appears to take the view that every effort has been made in the current system to ensure appointment on merit from the widest possible pool of those qualified. I have not heard him say that that is not happening. Indeed, it would be surprising if it were not, because that would constitute a criticism of either this Lord Chancellor or his predecessor. Indeed, going back to the Conservative Lord Chancellor before them, I seem to recollect some extremely creative appointments being made, and his not being criticised for that.
Does the hon. Gentleman recognise that it is a merit not only to have the highest levels of judicial ability but to add to the bench greater representativeness than it had before?
I certainly agree with the right hon. Gentleman that we should not be doing our job properly if those who were capable of serving were being denied access to the higher ranks of the judiciary, for whatever reason. To that extent, I entirely agree with him that if the system can be improved so that there are fewer occasions on which anyone makes a complaint, that would be a good thing. Appointment on merit is the key criterion that must be observed, because ultimately judges are there to decide issues not because of their background, their race or their faith. The wonderful thing about this country is that that is exactly what has been happening for many years and we must ensure that it is preserved.
If we are to encourage people to go on to the higher benches of the judiciary, we must face the fact that, at the moment, many of them have to be asked to do so. The Minister will acknowledge that the current composition of the Court of Appeal simply would not be as it is if people had not been prodded—at the moment by the Lord Chancellor and sometimes the Lord Chief Justice—into accepting appointments that often involve a substantial diminution in their earnings. That is something that we shall need to consider carefully, because if the appointment system is simply going to involve filling in a form and answering an advertisement, I have a nasty feeling that many people who have the requisite talent and merit will be excluded from applying, either through diffidence or some other reason. This is another area of the existing flexibility that we must not lose through the mechanism of setting up a judicial appointments commission. We can look at that in detail in Committee.
Will my hon. Friend note that a number of hon. Members, myself included, have considerable concerns about the procedure whereby complaints can be made to the ombudsman regarding the methods of selection used by the appointments board? This matter must be carefully scrutinised in Committee.
I agree with my right hon. and learned Friend. Indeed, I apologise for not having touched on that matter. I was conscious of the passage of time and wished to allow adequate time for Back-Bench contributions. He is right—that is another area of detail that we need to examine.
The principle of the judicial appointments commission appeals to me and I am sure that it will lead to improvements, but the detail is important, and the fact that we support the principle should not, and will not, mean that we ignore the detailed problems associated with it. I have read the Bill and looked at the debates in the other place, and it has become apparent that there are complexities involved. Unless we get them right, we could end up with an appointments system that does no better than the present one. Indeed, it could contain flaws that the present one does not.
The Minister tells us that the supreme court will cost £30 million to set up. I suspect that that is a highly conservative figure. If we have understood him correctly, the court is heading straight into the Middlesex Guildhall, which is the one place that the Law Lords who support the idea of a supreme court do not want to go, because it would send out all the wrong signals about what they are and how they operate—[Interruption.] I give way to the Minister.
I was expressing slight surprise that the hon. Gentleman thinks that it is the wrong place in which to have a supreme court. Parliament square represents pretty much the apex of our constitution, so perhaps he could elaborate on why it is the wrong preferred choice.
The valid points that were made were that the building is an old guild hall. A number of its rooms have limitations in the way in which they can be adapted. They are not suitable for the sitting of a supreme court because the judges want to maintain the informal atmosphere that they currently enjoy in a Committee Room in the House of Lords. Most of the other accommodation is similarly unsuitable. Those points were made with some force not by me, but by Lord Bingham and it seems that the Government intend to ignore them. I find it a little surprising that as the new supreme court is supposed to send out a powerful signal of novelty—I mean that in the best sense of a new beginning—it is proposed to house it in a building that is not exactly a symbol of the supremacy of law.
The irony, as Lord Nicholls of Birkenhead made clear in his speech, is that many Law Lords find the setting in which they currently do their work extremely congenial because of both the accommodation and the signal that it sends out of how they conduct their business. It may be a bit cramped, but it is astonishingly cheap with £168,000 a year of overheads, compared with the Government's estimate of £8.8 million a year on overheads for the new supreme court. I shall need a lot of convincing from the Minister that the new idea has any merit.
Has my hon. Friend attempted to understand the notes on clauses about costs? If he has tried to read them, does he understand, as I do, that the extra capital and running costs will be reflected in higher court fees charged to litigants by the judicial system? Does that not contradict the Government's expressed wish to increase access to the justice system through lower costs?
My right hon. Friend is right. Not only is that contradictory, but it seriously undermines a central activity of government. The original compact between the state and the citizen—the principle by which we become citizens of a state—is that we have access to justice. It is an extraordinary state of affairs. I do not want to widen the debate too much this afternoon, but at present access to justice is becoming harder and harder for more and more people because of increasing restrictions on legal aid. Court costs are another mechanism by which access to justice may be seriously hindered and it worries me that the Government are approaching the matter in what can only be described as a commercial way. Access to justice is not a commercial matter.
On the point about rising court fees, they have been raised substantially at county court level and in the High Court, and are a considerable disincentive to litigation.
My right hon. and learned Friend is correct. It is a matter of anxiety and has been worrying me because, during the past month, I have received letters from solicitors and litigants indicating their level of concern. An extraordinary part of the Government's scheme is their attitude to the privatisation of justice. One inevitable consequence is that more and more matters will be resolved in other forums by arbitration and so on and, inevitably in such settings, it is the weakest and those with most need of access to justice who will be denied the justice that is an essential part of the coronation oath that underpins one of the reasons why this country and state exist.
It is rich of the hon. Gentleman to lecture the House about access to justice on the very day that his colleague the shadow Chancellor proposed axing hundreds of millions of pounds from the legal aid budget. How on earth can the hon. Gentleman square his comments with that sort of removal of access to justice?
I think I very much understand the shadow Chancellor's proposals, which are to start closing down law centres, withdrawing support for citizens advice bureaux and scrapping the community legal service partnerships. How on earth can the hon. Gentleman get away with lecturing the House about how his party is, supposedly, the defender of access to justice?
The Minister has clearly not read the paper. If he had done so he would have seen that the changes we seek concern particularly what we regard as the waste of money by the Lord Chancellor's Department and the Secretary of State for Constitutional Affairs, in spending money that ought to be spent on legal aid on a series of social projects up and down the country that are an ersatz replacement for the lack of availability of legal aid to individuals.
My hon. Friend may recall the Access to Justice Bill that went through the House between 1998 and 1999, although he was not a member of its Standing Committee. It was a cruelly named Bill—it should have been the denial of access to justice Bill. The Government ripped up legal aid in any accepted and understandable form, denying huge numbers of the sick, the elderly and the poor access to justice. The Government said that they would rely on charities, citizens advice bureaux and law centres, but of course they cut funding to all those institutions. Not only did they deny public legal aid, but they denied any other route that was available to the poor, the sick and the elderly. The Minister then has the cheek to criticise my hon. Friend for advancing the Conservative policies that he has just been pronouncing.
I remember the Bill very well and I agree with my hon. and learned Friend that the Government's comments ring particularly hollow. When they came into office in 1997, 60 per cent. of the population were eligible for legal aid; the figure is now 5 per cent. That is the measure of the change that the Government have presided over. The substitutes they have offered are, in many cases, not adequate.
I want to be clear about what the hon. Gentleman is saying. Is he giving a commitment that a Conservative Government would not scrap any aspect of the community legal services partnership or support for citizens advice bureaux, legal aid work or law centre work? Is he giving that commitment?
No, I really must make some progress.
The Government's argument is that a supreme court must be set up because the position of the Law Lords is so anomalous at present, yet in fact it has unique characteristics that are beneficial to the way in which we do governmental business in this country. It allows the Law Lords to participate in debate in the other place and they have shown themselves—as I said to the Minister and he acknowledged at the outset—perfectly capable of choosing their words with sufficient care and choosing the debates in which they intervene sufficiently carefully to ensure that no criticism attaches to them. That is what the Minister wants to get rid of, but it has real value as a constant reminder in the legislature of the view of the judiciary. The oddity is that, as far as I am aware, instead of the Law Lords being able to express themselves in the House of Lords, the replacement position will be that the Lord Chief Justice will have to do it all for them—and not only there, but in the forum of press releases, for the fulfilment of which role he has already been allocated a press officer. I find that rather odd. We are shutting down what is a very controlled and ultimately beneficial way to ventilate issues of public concern, yet the Government acknowledge that, far from cloistering away the judiciary, they must make alternative arrangements.
Yes, indeed. Of course, the Law Lords are helped in their work by the fact that they are present in the House of Lords, so they are intimately aware of current trends in the country—[Interruption.] Oh yes, and they have an opportunity to discuss matters informally with others. That is valuable, and I regret that the Government want to get rid of it for such a costly white elephant that, otherwise, will deliver exactly the same service. The Minister is asking us to vote for a Bill that will vastly increase the cost of an institution that will otherwise operate in exactly the same way, save for the removal of the Law Lords' rights to speak and vote, even though they have never been criticised for the way that they exercise them.
Mr. Hogg was incorrect to suggest that the Law Lords have a broad sweep of legal experience. There has not been a criminal lawyer in the House of Lords for quite a long time, as I am sure the hon. Gentleman is aware. Is not what he is saying inconsistent with the fact that half of the current Law Lords first, announced themselves, through Lord Bingham, to be uncomfortable with their current role in the Lords, and secondly, declined to speak at all, going beyond even the self-denying ordinance of 2000 because they simply think it inappropriate to mix their two roles?
The final point reflects well on the Law Lords. The Minister wants to depoliticise the judiciary, but I am afraid that the debate conducted since the summer of 2003 has had the effect of pulling those in the judiciary—much against their will, I suspect—into an arena where they have had to express their views, and they have succeeded in doing so moderately and sensibly. I fully acknowledge that there are differences of view among the Law Lords about the best way to continue, although it is remarkable, given the Government's enthusiasm for this project, that about 50 per cent. of the Law Lords would very much like the Government to drop it. Clearly, there are mixed views and, ultimately, it is for Parliament to decide, but I cannot go back, face my constituents and tell them that the Government are setting up a very expensive institution that will deliver virtually the same service but with some considerable downsides.
Is not the point that the hon. and learned Lady made a moment ago not overtaken by the fact that most, if not all, of the peers that the Prime Minister has appointed to the House of Lords who take the Labour Whip do not appear, speak or vote there? Surely, as they were appointed to do a political job, it is worrying that they simply fail to do it.
My hon. and learned Friend is correct—and he reminds me of the first part of the hon. and learned Lady's question, which I did not answer. Of course, the lack of a suitable criminal judge among the Law Lords is perfectly curable under the existing system, especially as we would be willing to have a new system for the appointment of Law Lords if the Government so wished. That would tie in precisely with our views on the judicial appointments commission generally, although I accept that a separate body would operate. We have no difficulty with that.
We have indicated by our reasoned amendment that we consider that this Bill is not worthy of support in its present form. I heard the Minister's comments about the Lord Chancellor and what the Minister intends to do with the Lords amendments in Committee, and that reinforces my view that the sensible thing to do is to vote for the reasoned amendment.
When the Bill comes to Committee, we will do our best to improve it. I again ask the Government to reconsider, even at this stage, their position on which parts of the Bill are taken on the Floor of the House. If the Government want and are prepared to listen, they could, notwithstanding our reservations, still end up with a Bill that will command widespread approval and stand the test of time. However, the way that the Minister and the Government are going at the moment does not give me confidence that that will happen. The truth is that the Government will have difficulty in the other place when the Bill returns there, and they deserve that. It is a pretty fitting epitaph on the way that they have handled this matter.
I declare my interest as a lawyer and part-time judge. I see one other Member in the Chamber who sits as a recorder.
I want to start with the important principles that are set out in clauses 1 and 4, which deal with the rule of law and judicial independence. It is vital that we focus on principle so as to build a system in accordance with principle. Other important values include equality before the law and access to justice, which has already been mentioned in the debate. There is an issue about whether the clauses would be justiciable, but the fact that they are in the Bill and will therefore be part of the Act is not just symbolic; the clauses are cardinal in our system.
How do we define the principles of rule of law and judicial independence? We can do so negatively. We can look, for example, at Zimbabwe. The Bar Council and other Bars around the world recently published a report demonstrating how there is no longer the rule of law in Zimbabwe. Mugabe has said:
"The courts can do whatever they want, but no judicial decision will stand in our way".
The report sets out how the independence of the judiciary and the rule of law have been corrupted. Judges who have handed down decisions adverse to the ruling party have been arrested, and up to 10 judges have left and hacks have been appointed in their place.
More positively, we have clear definitions in our law. On the rule of law, as lawyers we tend to go back to what Dicey said—that the rule of law means that no person is punishable except for a breach of the law established in the ordinary manner before the ordinary courts of the land. That contrasts with Zimbabwe, where there is arbitrary power and wide discretionary authority. Secondly, no person is above the law—the principle of equality before the law. Thirdly, the general principles of the constitution are the result of judicial decisions determining the rights of private persons.
In modern language, the rule of law means that the system has to accord with certain formal criteria. The law has to be promulgated to the public; it has to be prospective and not retrospective; it has to be possible to comply with its provisions; it has to be clear, coherent and stable; and the persons who make and administer it should be accountable for the way in which they administer it. One aspect of the rule of law these days is also said to be judicial independence.
As the criteria tend to be formal, some have said that we must also take account of substantive principles. Modern accounts of the rule of law thus include not only formal criteria, but the content of the rules themselves and the nature of the system. When the World Bank recommends new judicial systems to countries, it talks about the rule of law and tells them that they need democratic, open and transparent systems in which several political parties can contest elections. Additionally, public officials must be aware of the limits of their powers and act accordingly.
Judicial independence is mentioned in clause 4. At a basic level, that simply means in some countries that one should be able to buy goods and services, but not judges. Mr. Grieve mentioned the separation of powers, and I agree with him that Montesquieu got it wrong. It was interesting that he was concerned about the separation of powers because he did not want Executive and judicial power to be coupled to oppress citizens. Even in the United States, the separation of powers does not exist in a pure form because, for example, the Chief Justice of the Supreme Court would have presided over an impeachment trial of President Clinton. Bagehot was right—we have a fusion of powers. The fact that I sit as a recorder and a Member of Parliament shows that this country does not have a strict separation of powers.
None the less, the notion of judicial independence has force. That independence has individual and institutional aspects. The individual aspect is mentioned in clause 4(5), which provides that the Government should not seek to influence the specific decisions of judges. That is absolutely right because courts must be protected from actual or apparent interference by the Executive—there should be no back-door influence. Lord Mackay, a former Lord Chancellor, was right to say that the independence of the judiciary denotes not only independence from the Executive, but the independence of one judge from other judges. Clause 4(5) reflects the international consensus on the meaning of the independence of the judiciary that is set out in international instruments such as those promulgated by the International Bar Association and the United Nations.
There is a question about whether independence includes the concept of impartiality. Article 6 of the European convention on human rights uses the words "independent" and "impartial". Although some people have suggested that they are separate principles, I prefer to regard impartiality as an aspect of independence. Impartiality means of course not only that judges must not have personal biases or prejudices, but that they must exclude considerations that are not relevant.
A judge must mediate in disputes between citizen and citizen, and the citizen and the state.The institutional aspect of independence is recognised in clause 4(6). It says that a Minister or the Lord Chancellor
"must have regard to . . . the need for the judiciary to have the support necessary to enable them to exercise their functions."
Such support is absent in Zimbabwe because some of its judges have no facilities—several reports suggest that they sit in rooms without electric lights. Governments have an obligation to provide the administrative and financial support that is necessary for the judiciary to do its work.
An independent judiciary does not mean that judges come in with a blank sheet of paper, which is especially important when we consider widening the pool and increasing diversity in the judiciary. We want judges to have varied experience and a range of expertise. They must, of course, act in accordance with law and, according to the judicial oath, without fear, favour, affection or ill will, but that does not mean that they come without any views at all. In fact, it could be argued that the wider the range of experience that judges have when they come to the job, the better.
Judicial independence does not mean that judges are not accountable. The most important way in which they are accountable is that they have to give reasoned decisions, which are available to the parties and the general public. Judgments can be criticised, which is an important aspect of accountability. These days, judges have to be aware of the importance of acting efficiently; time is an important resource. Returning to the principle of access to justice, which I mentioned earlier, the fact that disproportionate resources are given to a few cases means that many outside the system do not get access to justice. Judges also have to be accountable if they are rude to litigants or counsel.
Independence does not mean that judges can decide what they want. They have to act in accordance with the law. Lord Scarman, one of the most prominent Law Lords of the 20th century, who recently died, said that it is not just a matter of deciding what is right; judges have to act in accordance with statute and the common law. If neither statute nor common law gives a clear answer, it is possible to reason by analogy. One cannot simply decide issues without any guidance from law whatsoever.
The hon. and learned Gentleman is giving a very interesting talk. I wonder how far what he is describing of the current state of the judiciary and its independence will be changed, positively or adversely, by the Bill.
It seems to me that the Bill will provide a firm underpinning, especially in the principles set out at its very beginning, for the standing of our judiciary. I will come on to that in a moment, and I will acknowledge that the standing of our judges is unrivalled, both in their merit and in the quality of their decision making.
I have said in earlier debates that there has to be mutual respect between institutions. Judicial independence does not mean that judges can completely neglect what Parliament, for example, says. Parliament, of course, has to respect judges' decisions, and we have rules about what we can say about judicial decisions and how we can criticise judges. Judges have to respect legislation, and there is no criticism of the position at present. In 2003, Mr. Rusbridger of The Guardian brought a case under the Treason Felony Act 1848, arguing that if he advocated republicanism he might be in breach of the Act. The House of Lords said that it was not for it to say that the Act was no longer extant.
There is also an obligation on judges to make decisions in accordance with law, even controversial law, and to respect institutional expertise. The recent case law on the Human Rights Act 1998 is very interesting. Judges have developed a notion of judicial deference in relation to some decision making by the Executive, especially when moving away from article 6 on purely judicial functions to some of the other articles, saying that they have to respect the Executive and Parliament. In the recent Belmarsh case, Lord Bingham said in relation to the notion of whether there was a public emergency to satisfy article 15 that great weight had to be given to the judgment of the Home Secretary, his colleagues and Parliament, because they were called on to exercise a pre-eminently political judgment.
Other aspects of the independence of the judiciary came up in debate in the other place. Should judges be appointed to inquiries, for example? I do not take any strong view on that. Recently, the Lord Chief Justice came to an agreement with the Lord Chancellor on how judges should be appointed to inquiries, so as to ensure that the standing of the judiciary is not undermined.
Once we have the principles right, we can move on to discuss in a more informed way some of the Bill's specific provisions. Let me come first to the supreme court. I confess that, initially, I had some misgivings about its creation. As I have said, the House of Lords is highly respected in its judicial capacity. No one could suggest that it has not been independent, even though those of their lordships acting in a judicial capacity have been Members of the House of Lords as a legislative body. If there were concerns, they could have been dealt with by, for example, the Lord Chancellor not presiding over the Judicial Committee or by the Law Lords not participating in debates in the House in its legislative capacity.
Having listened to the debates and having heard evidence given to the Constitutional Affairs Committee, I have been persuaded by what the Lord Chancellor has said, as I have by the comments of Lord Bingham and Lord Woolf. The creation of a supreme court, as Lord Steyn put it in a lecture a couple of years ago, is a "badge of judicial independence". The institutional separation that the supreme court represents minimises the risk of any public perception that judicial independence is compromised. Like the hon. Member for Beaconsfield, I do not give great credence to the article 6 argument. Although that argument might ultimately have been lost, I do not think that we should have regarded it as especially persuasive. However, in terms of the basic principles inherent in our common law system—the rule of law and the independence of the judiciary—a supreme court is an eminently sensible idea.
Of course, even if we get that far, that is only the start of the debate. What sort of body are we talking about? We are not talking about a constitutional court. We are not talking about something like the Bundesverfassungsgericht, the German federal constitutional court. The history and institutional arrangements there are quite different; there is a written constitution and a federal system. Similarly, in the United States, there is a mainly constitutional court. With more devolution and human rights cases coming up, the House of Lords or the new supreme court will deal with more constitutional issues. None the less we are not establishing a purely constitutional court, which would be concerned only with constitutional issues. Our tradition has been that constitutional issues are decided by the ordinary courts, which also decide matters of common law and statutory interpretation. It is absolutely right that that continue to be so.
There is an issue about whether we have a UK court. We now have a clear statement that we indeed have a United Kingdom court. As I understand it, the decisions of the court on cases from England, for example, will not be binding in the other jurisdictions—in Scotland or Northern Ireland. Of course, their persuasive force will be great—I need only remind the lawyers present of the important Scottish case of Donoghue v. Stevenson, which was accepted as binding in all jurisdictions.
Resources have been raised as an issue. We members of the Constitutional Affairs Committee were impressed by the system that governs the High Court of Australia—not only the resources available to the court, but the control that the court itself has over the allocation of resources. The supreme court must have a building appropriate to its status. Although it would be an inconvenience for Mr. Garnier and for me to be unable to sit there as recorders, it seems to me that, when refurbished, a building on Parliament square would be most appropriate to a supreme court.
Hon. Members have spoken about fees. I am not especially concerned about fees in a supreme court. The legal costs in most of the cases that go to such a court are so great that—unless someone has taken the case pro bono—the fees are infinitesimal. None the less, there is an issue about the principle of full cost recovery, which has not been debated by the House since it was introduced in the early 90s, and it would be appropriate to return to the subject at some stage.
The supreme court will not sit en banc. That is partly because judges, in the past, also had to sit in the Privy Council, and partly because there was a separate panel to hear leave applications. I have no difficulty with that continuing.
It is no secret that I have not been completely happy with the approach to appointments. Although it is not enshrined in the Bill, it is accepted that there has to be geographical representation: just as in Canada there are always three judges from Quebec, it is acknowledged that there will have to be representation on our supreme court from Scotland and Northern Ireland. My concern centres on the fact that the appointments commission is to put only one name forward. I have argued in the Constitutional Affairs Committee—I divided the Committee, and it accepted the view—that a number of names should be put forward. That is because the judges who are appointed to the supreme court will make extremely important decisions on tax, civil liability and contract as well as on constitutional issues. In my view, greater democratic input is needed. I agree with Professor Robert Hazell, who gave evidence to the Lords Select Committee. He said:
"I strongly believe that ministers should continue to be involved in judicial appointments and have a bigger say than is now proposed and so should Parliament in its classic scrutiny role. On the executive having a choice, it is very important for the executive to retain a role in senior judicial appointments primarily so that the Government itself should retain trust and confidence in the judges."
An additional argument is that such an approach offers additional protection for judges: if they are appointed by politicians, politicians might be inhibited from criticising them too much, whereas if, in effect, judges are appointed by the commission—the Minister will have only a veto—they might be subject to greater criticism.
Before I discuss the judicial appointments commission, I should declare the interest that I was a member of the Commercial Bar Association group that made a detailed submission on the subject last year. I was pleased to hear that the hon. Member for Beaconsfield is generally happy with that part of the Bill. I was not surprised to hear that, because we have reached the present position through evolution. The Law Society called for reform in the early 90s. Lord Mackay as Lord Chancellor opened up judicial appointment by advertising for circuit court judges. Lord Irvine appointed a Commissioner for Judicial Appointments, and Sir Colin Campbell has reported on a number of occasions. The system has been brought generally into line with modern principles of appointment, with equal opportunities and feedback for those who are disappointed. Lord Irvine also instituted the annual publication of a report on appointments. In a way, the proposals in the Bill build on the principles of openness and transparency that already operate. Scotland has a judicial appointments body and Canada has commissions that recommend appointment in some of the provinces and at federal level.
There are issues surrounding composition. The Constitutional Affairs Committee took the view that the commission ought to be chaired by a lawyer, but the concordat between the Lord Chief Justice and the Lord Chancellor concedes that a lay member should chair the body, so we have to accept that. There has been some discussion about the extent to which the Lord Chancellor can issue guidance, and the Joint Committee on Human Rights states, at paragraphs 1.54 and 1.55 of its report, that guidance by the Lord Chancellor would breach the independence of the judiciary. I reject that view. There can be no human rights-based objections to the Lord Chancellor giving guidance to the judicial appointments commission.
Merit is the cardinal principle. We cannot have a representative judiciary. Just as I want the best person to do brain surgery on me, I want the best judges. None the less, diversity is not inconsistent with merit. The excellent 2004 consultation paper "Increasing Diversity in the Judiciary" demonstrates the increase in the number of women and ethnic minority lawyers appointed to the judiciary—for example, Mrs. Justice Linda Dobbs was the first black female appointee to the High Court. I commend my right hon. and noble Friend the Lord Chancellor for quickening the pace of increasing diversity.
I take the point made by the hon. Member for Beaconsfield, but I would put it more colloquially: we have to beat the bushes—we have to encourage people to apply. Some people might, for some reason, be dissuaded from applying. My concern about the judicial appointments commission as proposed is that only one name will be put forward. My argument is the same as I advanced in relation to appointments to the supreme court: it seems to me that democratic accountability would be better served by more than one name going forward to the Minister or the Lord Chancellor.
Both in terms of the principles that I outlined at the outset of my speech and in terms of the bulk of its details, I think that the Bill is an appropriate measure to put to the House. I shall certainly support it tonight.
It is important for Members who are not lawyers to contribute to the debate; otherwise, there is a danger that it will become a dialogue between hon. and learned Members, and the measure is far too important for that to happen.
At the outset, I should say that the Liberal Democrats support the Bill—but, my goodness, the Government have made it difficult for us to do so during its genesis. I do not accept the enormity of the problems portrayed by the Conservatives, and I do not believe that the supposed furore extends far beyond people with a particular and special interest in the proposals. Indeed, although excellent points were made in the debates in another place and by the Committees that considered the Bill, there was a great deal of trade unionism—people protecting their own interests rather than looking at the wider aspirations of the proposals.
The Bill is an important measure in anyone's book. The Lord Chief Justice, Lord Woolf, has been cited a couple of times already, but it is worth underlining what he said on
"the Bill marks a gigantic step forward in our constitutional arrangements. Above all, it means that the future independence of the judiciary will be safer than it has ever been."
We support that important aspiration. Lord Woolf went on to say:
"if we value an independent judiciary and its task in protecting our personal freedoms, we should ensure that this Bill reaches the statute book."—[Official Report, House of Lords,
That does not display the doubts which, it was intimated earlier, the Lord Chief Justice entertained. Of course he had doubts in the initial stages, but they have been resolved by patient consideration of the Bill in another place.
Does the hon. Gentleman agree that the Lord Chief Justice was concerned that there was a serious risk that there would be no end to the legislation? A hiatus was created when the Prime Minister tried to strike off or delete the post of Lord Chancellor in summer 2003. That was, and is, one of the major concerns of the Lord Chief Justice, and it may be one reason why he wanted to bring the matter to a conclusion.
I do not think it is for the hon. Gentleman or me to ascribe any further motivation to the Lord Chief Justice, and it would be unwise to do so. I am quite sure, however, that he shared the widespread concern about the way in which the proposal was introduced. Mr. Allen said in an intervention on the Minister that the Government had been urged to introduce the proposal for a long time—it had been subject to undue delay, but it was not a back of the envelope job. The sad news, however, is that it was both. Yes, the proposal was long overdue, but equally, it was produced on the back of an envelope, because the Prime Minister chose to make fundamental changes to the structure of government on the basis of poor or non-existent advice.
In my capacity as Liberal Democrat spokesman on constitutional affairs, I often ask people two questions. First, what is the link between the highest levels of the judiciary and my constituency? The answer is that the statue of justice on top of the Old Bailey was made in Frome. Secondly, who was Lord Chancellor in 1075? I am relying on various websites for the answer, as I cannot find any historical details about the brief occupancy of the Lord Chancellorship in 1075 by Baldrick. Everything about the introduction of the proposals smacks of the character of Baldrick in "Blackadder". As hon. Members will remember, he always had a cunning plan. This was the Prime Minister's cunning little plan, but it was rather a bad one, as it involved announcing the abolition of the post of Lord Chancellor without, apparently, a single thought about what would happen next. Indeed, the announcement was made on
Has the hon. Gentleman not underestimated the difficulty? When Baldrick had a cunning plan, he usually gave some evidence of thinking it out. The problem with this cunning plan is that when it was announced, there was no evidence that anyone had given it any thought at all.
I agree with the right hon. Gentleman, but I fear that I will become lost in a metaphorical wilderness if I pursue the Baldrick theme too far, so I hope that he will excuse me.
Not only did the proposals lack any substance other than a relabelling, which was palpably inadequate to deal with substantial constitutional change but, even worse, people who should have been consulted were not aware that an announcement was about to be made. The Lord Chief Justice had clearly not been consulted, and neither had the senior judiciary. No one in Scotland was consulted at all, despite the fact that the proposals had implications for Scottish constitutional arrangements. That is a serious criticism both of the way in which the machinery of Government operated under the Prime Minister's edict and of the readiness to put into effect a fundamental change to our constitutional arrangements.
Consultation has now taken place, and it has been extraordinarily productive. We should give credit to everyone who has been involved in the discussions. In particular, the senior judiciary have been remarkably sensitive to the intentions of the Government, who have made a sensible response to those concerns. The concordat, which has been mentioned several times, is crucial, and it underlies our position on the Bill.
I do not wish to speak at inordinate length in a debate that has already taken up considerable time, but I shall look briefly at the proposals. The first does not concern the Bill itself, but the Department for Constitutional Affairs, which we christened "Decaff". People in the Department do not particularly like that abbreviation—which only encourages me to use it—but it is apt, because of its "justice lite" brand, as opposed to the full-bodied equivalent . We have argued for a long time that we need a proper Ministry for Justice, which would encompass the responsibilities of the Department for Constitutional Affairs but would also go much further, taking a large chunk out of that monolithic bailiwick, the Home Office. Responsibilities that are not appropriate for a Minister with executive responsibility for the police and investigative services would be removed to a protected area, where the proper concerns of justice and the relationship between the citizen and the Executive could be taken into account. Our principal criticism, therefore, is not about the establishment of a new Department but about the fact that it does not have the scope to do the job that we would like it to do.
Secondly, we are anxious about the constitutional position of the Lord Chancellor—a post that was abolished in a day, but is now to be restored and maintained in perpetuity. There has been a great deal of debate about the doctrine of the separation of powers and, as hon. Members on both sides of the House are aware, such a doctrine is not current in our political philosophy, although it is in other countries. Surely, however, we have a concept in our political affairs of the de facto separation of matters that are properly the province of the judiciary and those that are properly the province of the Executive and the legislature.
It was an anomaly of staggering proportions to have in one person a Cabinet Minister with executive power—a member of the Executive—as both the head of the judiciary and the Speaker of a House of the legislature. We only have to imagine for one moment arguing in a newly formed democracy that that was the right way for it to organise its affairs to realise what a constitutional anomaly it was. I am personally glad that the anomaly has at last, partially, been resolved. That is something that I have called for over many years, and I shed no tears for the judicial role of the Lord Chancellor, which I think was largely illusory in any case.
I part company with those who say that Lord Chancellors have never exercised their powers in a partisan way. Mr. Grieve was right to say that over the past 25 to 30 years we have had excellent Lord Chancellors who have not exercised their powers inappropriately. However, I am sure that he would agree that in the early part of the 20th century there were Lord Chancellors who were anything but entirely open and transparent in the way in which they exercised their powers.
I entirely agree with the hon. Gentleman. Until after the second world war it was considered perfectly proper for a Lord Chancellor to exercise a degree of political patronage in judicial appointments. Times have moved on. That shows how evolution can take place within existing structures in our constitution by convention that subsequently become irreversible.
If it is irreversible, let us make that clear in our statutes. That is an argument for the measure, and I think that there was scope for abuse.
I have difficulties with the notion that the Lord Chancellor has to remain as the Secretary of State in charge of a major Department of State, in the House of Lords. I have problems with that on a number of fronts. I think that as a matter of principle, Secretaries of State should be answerable to this House. I am sorry that not everyone agrees with that, but I think that that should be the position. With all due respect to the Under-Secretary of State for Constitutional Affairs, Mr. Lammy, who is sitting on the Government Front Bench, I do not think it is right that this major Department of State can answer to this House only through the person of a junior Minister. The Secretary of State should be available to us for questioning.
I find it difficult to countenance any Secretary of State being in the upper House. That is my personal view. I cannot understand the position of those who criticise the present Lord Chancellor by saying that he is one of the Prime Minister's cronies and used to be his flatmate, which played a part in his appointment. I think that the present holder of the position often does a very good job, but that is a common criticism. Why, then, would he want to institutionalise that arrangement, so that every future Lord Chancellor—every future Secretary of State for Constitutional Affairs—had to be a crony of the Prime Minister of the day, because only by that patronage does anyone appear in the other place?
That is an extraordinary anomaly. There is a further anomaly, and I have to say that the hon. Member for Beaconsfield rather ducked it when he was intervened on by one of his hon. Friends. If the Conservatives wish to see an upper Chamber that is 80 per cent. elected, why is it all right to have a Secretary of State—a Lord Chancellor—who is elected and sits in the upper House, but not all right to have a Secretary of State who is elected but sits in the lower House? Where is the constitutional logic of that position? I do not think that there is any logic.
I leave to one side the composition of the upper House after any reform that a Conservative Government might carry out, but the hon. Gentleman is missing the point. By virtue of taking the oath, irrespective of whether the Lord Chancellor is elected or not, he will not be able to have a further career in politics thereafter. That is the central point: the Government do not wish to see that happen. It is a question about the career of the person who holds the office, and the sensible place for him to be is in the House of Lords.
I am much more content to ensure that the Lord Chief Justice is genuinely independent of the Executive, is genuinely independent of the legislature and carries out many of the functions that give rise to concern in the hon. Gentleman's scenario, rather than being Secretary of State for what I would wish to be a Ministry of Justice. Under the present arrangements it will be a Department for Constitutional Affairs.
I do not want to disparage the Lord Chief Justice or other holders of that office. I am sure that the hon. Gentleman will recognise that much of the debate is essentially of a political character, as between the holder of the office of Lord Chancellor and the Home Secretary. The problem is that the Home Secretary's office is extremely powerful. What we need to set against that office is the authority of somebody else who is in a position to bear down on the Home Secretary, and persuade his Cabinet colleagues to disagree with him. There are advantages, therefore, in adopting the suggestion of my hon. Friend the Member for Beaconsfield.
I am grateful to the right hon. and learned Gentleman for his comments. I listened to him with a great deal of respect. It is precisely for that reason that I do not want to see a Lord Chancellor without any great status within the pecking order of the Cabinet because of the relatively junior status that has been accorded to the Department for Constitutional Affairs—and without the merits of an electoral mandate, too—being bullied by a Home Secretary. I take exactly the point that the right hon. and learned Gentleman has made. I think that we would be better served by having a strong Cabinet Minister answerable to the elected House with a mandate of his or her own to counter the weight of the Home Secretary. We should also rearrange the functionality between the two Departments so that the Home Office is cut down to size and the Department of Justice—as I would have it—is a much more significant body. That is a genuine disagreement that we can hold. I think that we can both agree that there is a need for the person who heads the Department to have sufficient status and weight to be able to hold their own.
I shall now move on to the Supreme Court—
That is my view. That is the view that I will express in Committee when we reach that stage. I do not want to mislead the hon. Gentleman, and I will make it plain that some of my noble Friends, many of whom have legal qualifications, take a different view. However, from this Bench in this place, I shall express the view that the legal qualification is not a necessary part of the equation.
I now move on to the proposals for the Supreme Court. This is a significant move but not a revolutionary one. It is absurd to suggest that it is. It is confusing and pointless that we have a Supreme Court already, with absurd names such as the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council acting in its constitutional role, and we choose to call the members of the Supreme Court the Lords of Appeal in Ordinary. Lords of Appeal in Ordinary is exactly what they are not, and nobody should suggest that they are.
We have a senior court which is not the House of Lords despite the fact that people think that it is. It is a separate body of judges that happens to sit, rather uncomfortably, within that edifice. It has an entirely different function, as has already been argued in this debate, and very often Law Lords do not exercise their role within the legislature, and nor should they because that puts them in an invidious position in dealing with their primary responsibilities.
We have fictions built on fictions built on fictions. Because I believe that we should be a modern democracy where things are as clear as possible—although nothing in the law can be entirely clear—it is helpful to the general public to understand that we already have a Supreme Court that is a separate entity and fulfils a particular function, and that the members of that Supreme Court are the senior judiciary of the land.
As regards judicial appointments, I wholly support the proposals, with one caveat. In Committee we need to do justice to the concerns expressed by Sir Colin Campbell and the Commission for Judicial Appointments about the structure and role of the proposed judicial appointments commission. We ought to be careful to assess the validity of those concerns.
In general terms, there is much to support in the proposals. I welcome the enhanced role of the Lord Chief Justice. As I said, I should like to explore whether the Attorney-General should have further express duties. The holder of that office sometimes plays a more significant constitutional role than we give credit for. It is a developing role, and transparency and clarity about what is expected of the Attorney-General, particularly in giving unequivocal advice, perhaps when that is not sought, on the appropriateness or legality of Government actions, might be an enhancement of the role.
I would not want to discourage the hon. Gentleman from being brief, but does he accept that there is in principle much to be said for the Attorney-General sitting in this House, and that whenever possible the Government should appoint as Attorney-General someone who is in this House?
It will not have escaped the notice of the right hon. and learned Gentleman that I believe that all Ministers should be appointed from this House. That is not my party's position, but it is my position. An upper House should be free from any patronage in the form of ministerial preferment, and ministerial appointments should be drawn from the elected House. Accountability is important, but that is not the situation at present. It could be argued that ministerial appointments solely from this House would limit the number of potential applicants for the role. This will not happen in my lifetime, but there could be a Parliament in which no legally qualified Members were returned by the electorate. That would cause the Government some difficulty—although it has not happened yet, and I doubt whether it will happen in the immediate future, judging by recent experience.
I have long advocated Middlesex Guildhall as the right place for the supreme court. I do not understand why anyone should consider it so self-evidently the wrong place. I understand that there are issues concerning the internal decorations of the place, difficulties with its listed building status, and the fact that the potential members of the supreme court will want a level of informality that is not entirely consistent with the rather austere and formal trappings of a court. Nevertheless, there is considerable symbolic importance to the fact that the court would be situated in Parliament square, in the centre of our democratic system, so that Parliament square would be flanked by at least four of the great estates of the realm—the House of Commons on one side, the Church in the form of Westminster abbey on another, the supreme court on another and, God help us, the Treasury on another.
I intervene not because, like Ross Cranston, I from time to time sit as a Crown Court recorder in the Guildhall, but to ask the hon. Gentleman whether his views about the suitability of the Guildhall have been informed by a visit to it. Has he been round it inside, as opposed to simply looking at it from the outside?
I do not deny that there are difficulties, but they can be overcome. That is the position that the Government have now adopted. The debate has been wonderfully amplified by having a recorder on each side of the Chamber, acting in stereo. I hope Mr. Garnier will have a chance to contribute to the debate formally.
Will the Minister confirm that under the Bill as it is formulated there will be two supreme courts—the supreme court of the United Kingdom and the Supreme Court of England and Wales? Will he confirm that he will remove one of those nomenclatures before the Bill reaches its final stages, as there is the potential for confusion with two "supremes" in one statute.
It is extremely important that we get the funding right. I will not tease the hon. Member for Beaconsfield about how he would achieve cuts in the Department. That was dealt with in an earlier intervention. We cannot allow the important process of justice to be curtailed by a lack of funding. The funding must be predictable, so that those who administer the court can do so with certainty.
The hon. Gentleman has his view. He also has his calculation of the marginal costs after the establishment of the supreme court, as opposed to its predecessor bodies. I am not convinced that that is an accurate representation. The Conservatives may be putting together figures that are not realisable, in a desperate bid to find potential savings in order to present themselves as a tax-cutting party. There is a danger that the debate will become overly partisan, which is not my intention.
I am grateful to the hon. Gentleman for making me the last person to whom he gives way. This is the intervention that Mr. Grieve would not take from me. Do not the Conservative costings deliberately exclude the staff and judicial salaries costs from the present system, but add them on to the costs of the new supreme court? They should, of course, be in both calculations.
That is precisely the point that I was making about the marginal cost increase. The hon. Gentleman is right. We can all do fuzzy maths, but it achieves nothing and people see through the credibility or otherwise of such proposals.
On full cost recovery, Ross Cranston was wrong. We have debated the matter. I tabled amendments to the Courts Bill, now the Courts Act 2003, to deal with full cost recovery, which is a serious matter. The idea that litigants in civil actions must pay, for instance, an apportionment for the upkeep of the royal courts of justice is an absurdity that we need to address. I, for one, am not prepared to see the costs of court action being put beyond the means of most ordinary people seeking justice. There is a real fear that that will happen, and the same will apply to cases that are brought to the supreme court under these proposals.
There is much to welcome in the proposals. There is certainly much to welcome in the concordat that was arrived at with the senior judiciary, and it would be foolish of us to seek to unpick that concordat in Committee or during the Bill's later stages unless we have very good reason to do so. I shall not resile from my position that the Department for Constitutional Affairs should take a greater role—a matter that I shall debate further—but we shall support the Bill, although not the time allocated to debate it, and we shall resist those who oppose it, either through blind reaction or sectional interest, which are unworthy of the considerable constitutional advance that the Bill represents.
Order. Let me offer a word of comfort to right hon. and hon. Members. Provided that everyone does not take a minimum of 29 minutes, there will be ample time for contributions to be made to the debate. I call Mr. David Kidney.
Thank you, Mr. Deputy Speaker, especially for that advice.
If anyone looks at the Register of Members' Interests, they will see that I have only one entry, which is as a non-practising solicitor, so I have no practical interest in the debate. However, as a former solicitor, I strongly support the Law Society's long-running campaign for more judges to be appointed from the country's body of solicitors. If I mention that from time to time during my contribution, that is the reason. It is certainly not from any personal expectation of reward if more solicitors become judges.
I welcome the Bill's commitment to the rule of law, which my hon. and learned Friend Ross Cranston dealt with at some length in his contribution, and the statutory pronouncement of judicial independence, which is an improvement on the present status of the law and gives a statutory underpinning to the safeguards that we enjoy—the safeguard against arbitrary government, the safeguarding of our human rights.
On the separation of powers, those hon. Members who have mentioned Charles-Louis de Secondat, Baron de Montesquieu (1689–1755) have been unfair to the gentleman, who was an influential philosopher and a judge—as it happens—in France and whose influence was sufficiently long-lasting for his views on the separation of powers to be accepted quite fully in the writing of the original American constitution. It is true that he had an idealistic view of the benefits of the so-called separation of powers in this country at the time that he viewed it, which I think was in 1748, but he probably was not that far wrong at that time in the development of our unwritten constitution. As a snapshot at that time, the Executive were very much represented by the Crown and the Ministers who advised the Crown, the legislature was a nascent and growing House of Commons and, effectively, an established House of Lords, and the judges were independent of both, which was what impressed him in his thinking and writing. Time has moved on and he did not foresee the growth of an Executive with the legislature in this country. What is so different here today is the way in which the Executive dominate the legislature. Happily, the Executive do not dominate the judiciary, and the Bill is here to ensure that no future development in our unwritten constitution changes that. That is why the Bill is welcome.
Just to finish with the Baron, he did say:
"The political liberty of the subject is a tranquillity of mind", and on the loss of liberty he said:
"there is no liberty if the power of judging be not separated from the legislative and executive powers."
I agree with him on that.
I thank the hon. Gentleman for giving way. Did he not also approve of the American system where the separation of powers goes somewhat further than the Government are proposing, particularly in relation to the Executive and the legislature?
I take it that the hon. Gentleman is asking whether I approve of the American constitution. I am simply happy to say that I prefer living in this country and I enjoy its constitution much more.
It is right that the position of Lord Chancellor should be filled by someone who no longer sits as a judge, no longer acts as the Speaker of the House of Lords and no longer carries personal responsibility for the appointment of members of the judiciary and Queen's counsel. It is right to impose a duty on the Lord Chancellor, whoever that may be in future, to uphold judicial independence. It is brilliant that the Bill goes beyond that and imposes the same duty on all other Ministers and all other persons who may have an influence on the administration of justice, but I see no reason why we should require the Lord Chancellor to have a legal qualification or to sit in the House of Lords. I am absolutely with Mr. Heath in thinking that it is far more desirable in terms of democratic accountability that a Minister of State should be in this House at this Dispatch Box facing questions from elected representatives of the people.
In future, judicial appointments will, by statute, be required to be made solely on merit and to require good character. That incorporates in statute what we presently practise, so that is correct and desirable. The statute is welcome because it includes those words, but a system of appointment must also be transparent, fair, efficient and independent to command widespread public confidence, so it is essential to ensure that the recruitment process itself attracts the broadest possible field of candidates. The judiciary tends to continue to attract those who look like the present incumbents. There are too few women, too few lawyers from ethnic minorities and I repeat that there are too few solicitors.
I give credit to those who have steered the process to reach the point that we are at today, beginning with Lord Mackay, who was mentioned by my hon. and learned Friend the Member for Dudley, North, who introduced the advertisement of vacancies and competition for appointment in 1994,. That was a welcome first step in a process that has since moved on. Hon. Members will appreciate that Lord Mackay was a member of a Conservative, not a Labour, Government, so I like to think that there would be cross-party support for the development that has since taken place.
By 1998, Lord Irvine, as the Lord Chancellor, was able to end the invitation-only system of appointments to the High Court bench. He was able to change the age limits for applicants and some of the sitting requirements for part-time judges—for example, block sittings—so as to be more flexible in accommodating people who would have found the previous system too restrictive for them to apply to be judges. He was also able to introduce the requirement that allegations of misconduct or serious criticism against an applicant had to be specific and backed by evidence or be ignored. He was able to introduce a lay input into the recruitment process itself, and, as my hon. and learned Friend said, he introduced the annual report to Parliament about the appointments process—again, desirable developments moving in the right direction. When he was still Lord Chancellor in 2001, it was Lord Irvine who introduced the present independent Commission for Judicial Appointments.
In terms of the continuation of the development and praise for it, I should add that the present Lord Chancellor has introduced the proposals in this Bill, themselves subject to widespread consultation before their introduction, showing that we continue to move in the same direction.
The existing commissioners for judicial appointments support further progress in this direction. In their last annual report in October 2004, they called for the continuation of the independent audits of the recruitment process, and both I and the commission look forward to a speedy extension of the new system to more of the appointments to lower judicial offices. The significance of that is that the commission could be criticised for not understanding what is going on in the legal profession lower down if it has no responsibility for the appointment of those judges. Broader experience and knowledge of the developing pool of judicial talent would help the commission to make future appointments higher up the judicial system.
I hope that the judicial appointments commission will make further improvements on fairness and transparency, continuing the good work that has been done to date. I hope that it will integrate diversity into its recruitment work, because I strongly believe that diversity reinforces merit and does not detract from it. I hope to see continued structured and accountable methods of collecting views from the judiciary on candidates who are suitable for office. I also hope that it will introduce further audit trails on how selection decisions are reached. Parliament and the Lord Chancellor can help to secure improvements such as helping to ensure diversity, consistent with merit, in the future judiciary.
Clause 58 covers the guidance that may be given to the commission and to selection panels for the most senior judges. Guidance may be issued on identifying persons who are willing to be considered for selection and on assessing them. The Bill states that the purposes for which guidance may be given
"include the encouragement of diversity in the range of persons available for selection."
My hon. Friend Keith Vaz asked the Minister whether he will assure the House that the good progress that I have recounted will continue. The best answer that the Minister could give would be that the Government will be active in using guidance to ensure that such work continues.
On the procedure for issuing guidance, which involves not only the Minister but Parliament, clause 59 requires the Minister to
"consult the Lord Chief Justice" and
"lay a draft of the proposed guidance before . . . Parliament."
The guidance must be approved by affirmative resolutions of both Houses of Parliament before it is given to the commission and to the selection panels. Clause 58 states that the panels and the commission must have regard to any guidance given. For the sake of completeness, the guidance may be revised and reissued too.
After the change from the present voluntary commission to the statutory commission, the old voluntary commission will be left with complaints, which will be dealt with by a new judicial appointments and conduct ombudsman, who will, to all intents and purposes, cover the commission's present complaints role.
One worrying omission, which I hope is put right in Committee, is that the Bill does not include a provision covering the voluntary commission's current role in auditing future judicial appointments competitions. Part of operating fair recruitment processes will be understanding what is going well and what is going wrong, which will require somebody to continue the audit practice of the present voluntary commission in the new system, because the Bill does not charge anyone with that responsibility.
I welcome the Bill and the proposal to introduce a new supreme court. I agree with the Joint Committee on Human Rights that a supreme court with justices barred from sitting in the House of Lords will make it less likely that violations of the European convention on human rights occur in practice. I hope that Middlesex Guildhall becomes the home of the new supreme court and look forward to 2008, when the collection of buildings in Parliament square will become even more impressive, demonstrating in both the geographical and political landscapes that the tranquillity that Montesquieu discussed in 1748 has come to Westminster, the home of democracy.
When the Government propose a major constitutional change, they must first explain that the problem is real and that it is worth taking such trouble over. The Minister is always charming and careful when he puts the case to the House, but he found it difficult to bring together two contradictory concepts. He wanted to assure us that everything has been okay for some time, that the judicial system is fair and that the judicial system has not been affected by party political considerations. Although such an example would have been to some extent anomalous, he could not point to any particular uncertainty in the law because of political involvement.
The Minister went on to say that the structure has caused discomfort and a lack of entire happiness for many years and that it needs radical modernisation. I am sure that one could make the case for tidying up most things, but we should be concerned with priorities and my worry is that the matter is not a priority. Given that the judicial system is right in principle, it is not the issue to go for, given the large number of other things that I can recommend the Minister to do, although, in fact, he himself would not have to do most of them. I would like a considerable extension of environmental policy to do something about climate change rather than talking about it. I can suggest a range of real priorities—we could, for example, improve the standard of our built environment, given that we are building so many houses.
The Minister has not established the fundamental basis for the Bill or explained the real reason for it. He said that the matter is difficult and that people misunderstand it. He said that, if one were to introduce a new constitution, it would be jolly difficult to argue that it should be the same as our system, but he would also find it difficult to argue for a constitutional monarchy or an established Church. I have no interest in those two subjects and no interest in the Bill, because I am not a lawyer—I have never wanted to be a lawyer and think that there are too many lawyers in the House. I am perfectly happy to discuss the matter and am not arguing on behalf of a vested interest.
It is peculiar to argue that everything has been okay, but we must have radical change because we cannot export our constitution to the rest of the world. The Minister has missed the fundamental nature of our constitution—that it is evolutionary, that it produces over time a series of checks and balances and that it is not written because it largely relies on conventions that people continue to observe.
I do not want to interrupt the flow of my right hon. Friend's speech with an indelicate intervention, but legal services are a successful invisible export from this country and overseas litigants are encouraged to come to our British courts in London to litigate their disputes. There is no guarantee that the great kerfuffle caused by the Government will enhance that invisible export one jot.
I am not expert on the size of those exports or their invisibility, but the present situation does not seem to put off people from abroad who ask for British law to be the basis of the interpretation of contracts and the like; indeed, the system appears to work quite well. On the question of practicalities, the people whom the Minister prayed in aid—the people from far beyond the seas who supposedly would not understand it—have not found it difficult to see that the system works. Indeed, only last week I perused a contract signed by a previous chairman of the company on behalf of somebody whom I employed. Although the company was French, the contract was to be understood in the context of English law and any argument about it was to be heard in the English courts. As the French today—leave alone Montesquieu—find it easy to understand that the system works pretty well, it is reasonable to think that it is not too bad. It may not be perfect—I am sure that Vera Baird will mention several aspects that she would like to improve—but that is true of most of life. The Minister has not explained why this change, with all its ramifications, is a sufficiently necessary or successful alternative to be considered by this House.
The Minister has not established the first point—that there is a real problem that needs immediate and fundamental resolution in this House. The second point that he must establish is that, having identified such a problem, he has made a considered response. Here, I very much sympathise with him. He had obviously thought carefully about how to deal with the fundamental difficulty that the issue was not introduced in the most felicitous of manners. I am sure that deep in his heart he said to himself, "I wouldn't have done it this way myself. I wouldn't have suddenly announced something that I had not talked to anybody about, not thought about much, and did not know much about, and then found myself in a mess so that my best friend had to go off and explain to people that what he had said was not quite what he had meant." This started off in a very embarrassing way—"back of an envelope" would be putting it politely.
Perhaps that would not matter so much were not this part of a pattern. Lord Butler restrained himself for many months before making his recent comments about the nature of this Government's approach to institutions of state. He argued, as an independent voice who was at the heart of Government, that this Government make decisions on the sofa. Very often, they do not act properly and sensibly by listening to people, finding out about the various views, and trying to use the institutions of Government better to serve the people, but by changing the institutions of Government ad hominem.
Let me give two examples that parallel what we are discussing. We have an Office of the Deputy Prime Minister, as we previously had the Department of the Environment, Transport and the Regions, that is based not on making Government more efficient or effective, but on providing what was thought to be a suitable job for the Deputy Prime Minister. His first Department did not provide him with a suitable job because he mucked it up considerably, so the Government created another Department based upon the same principle.
Perhaps I would not mind that happening on one occasion, but I was very upset when the Government decided to abolish what everybody had seen as the best and most powerful Environment Department of either party or of any European country. They took it away from planning and local government, where it had the power to act, and shoved it in with the Department for Environment, Food and Rural Affairs, as though the environment were something to do with rural development and woolly animals. It is not surprising that since then the environment has had no influence on any of the Government's decisions. When they introduced a planning Bill, the Minister responsible for the environment was never consulted.
I suggest to my right hon. Friend that there is another ad hominem change in which we might both have an interest. Following the foot and mouth debacle, the Ministry of Agriculture, Fisheries and Food was destroyed and responsibility for agricultural matters was pushed right down the pecking order.
My right hon. and learned Friend has been an Agriculture Minister. The Secretary of State who runs DEFRA has done a remarkably good job with the tools that she was given. The Department was created to give her a sufficiency of power to make up for the fact that she was going to be moved to make space for the Foreign Secretary. That was done over lunch—it was not back of an envelope, but back of a menu.
My point, Mr. Deputy Speaker—lest you should be hovering in your seat, about to suggest that I must concentrate on the Bill—is simply this: one does not arrive at good institutional solutions by making suitable packages for one's friends, but by doing the job properly and allowing the Government to function. That is why this issue is so serious. This Government are often characterised by saying the right thing and wanting to do the right thing, but very rarely achieving it. They are a Government of words, not action, and they have shown throughout that they cannot make the Government system work.
In saying that, I am citing the Prime Minister. After the first period of Labour Government, he admitted, "When we started we thought that when we said something, it would happen. Then we found that it didn't happen, so we would have to make it happen." Four years later, he still has not made it happen. The Government still do not deliver, even in areas where I support them. I support most of their aims on the environment, but I can no longer pretend that they have delivered any of them. Now, because the European Union has pointed out that we have not brought down our emissions as we promised, they are going to sue the EU to prevent it from capping those emissions.
In this case, the Government do not say, "There is a problem, we will prove that it is there and provide the institutional solution", but, "We don't really have a problem, there isn't really much to do, so we will make a fundamental change, but we can't prove to you that it will work in practice." The Minister did not explain how it would work. Indeed, he was at his weakest when he tried to argue that he could not do so because the other House had not made its decisions about whom it was going to call what to do which, and that there were problems about what would happen if the Prime Minister appointed as Lord Chancellor someone who did not sit in the House of Lords or, if he did appoint someone who sat in the House of Lords, whether he might chair its proceedings. As the Bill started in the House of Lords, it might have been helpful to have had answers to such questions.
We do not have those answers because the Minister started off on the wrong foot. The Bill did not come forth as the result of proper discussion and the serious involvement of all the appropriate parties, but because somebody wanted to shift people around on the board and make Cabinet changes without thinking about the results. The Minister may shake his head, but no one but he believes that we are here because of logical Government decision making. We are here because the Prime Minister made a mistake and had to cover it up by producing a Bill that would otherwise not have been introduced. I can imagine that, at some time, the Government might have believed that the Bill was a convenient measure to introduce when they did not want to present anything too controversial with the public to make up for the Hunting Bill, but that is not the reason for our debating it now. We are debating it now because the Prime Minister shot from the hip and found that he had shot his fox.
I would understand if the right hon. Gentleman disagreed with the proposals, but it does him no credit to belittle the logic and the rationale that I believe that I presented to justify a significant change in our constitution. Let us consider, for example, his point that the Lord Chancellor should be a lawyer or a peer. Does he claim that he is not sufficiently capable of undertaking that ministerial post and that he is somehow not qualified or capable of being appointed to it in future?
It is not among my ambitions. However, if the Bill had been approached by trying to find a consensus for change rather than pre-empting it, it would have been more logical and not open to the specific worries that now beset the Under-Secretary. I do not believe that I belittled his arguments. He is here, although not a lawyer, as an advocate. We know why he is here—he has been presented with a Bill and he has to do the best he can with it. In general, with his normal charm, he has done a great deal of good, but he cannot get away from the problem.
The problem is that the Bill exists not because of a concerted and sensible approach to the constitution, but because the Prime Minister made a bodge-up. To try to overcome that, it was thought better to try to produce something that might at least stand up, by which time he was in no position to gain a commonality of view. A considered response is crucial on constitutional matters. It would not matter if we were discussing a less important subject, but it matters not to have got a considered consensual response on a question that lies at the heart of the relationship between the powers of Government, the House of Commons, the House of Lords and the judiciary.
Now that we are here we must ask for the third point that is necessary for good legislation. We should demand proper scrutiny. If the problem has not been properly adumbrated and the response is far from considered, the House should demand at least proper scrutiny. I should like the Under-Secretary to reflect on the way in which he answered some of the questions that were put to him. I believe that future generations will speak harshly of the way in which the current generation has damaged the nature of Parliament.
The guillotine, without debate, that is compulsory for every Bill is a fundamental constitutional outrage. It means that the Government not only control the agenda, but decide the length of time that they believe should be devoted to any aspect of a Bill. As we witnessed earlier, the Government also decide whether a matter should be debated on the Floor of the House or Upstairs. The Government, with a majority, do all those things irrespective of any longstanding convention of the House. We heard from the Speaker that there was no position from which to defend the rights of Back Benchers because the debate is subject to a vote and not to his prerogative.
Given that the Government have started on the wrong foot, have experienced some difficulty in proving the need for the changes and have had great difficulty in providing a considered response or a proper consensus, I would have thought that they would at least ensure that the whole Bill was debated on the Floor of the House, as constitutional Bills should be, and that enough time was provided for that. The deal should have been done by the Government and the Opposition, with the involvement of the Liberal Democrats in the discussion. The Liberal Democrats take a different view from mine, but I believe that we have let the nation down by not enabling the country to understand how we have limited our ability to deal with legislation.
There is more bad legislation than ever on the statute book because there is more undebated legislation on it. To make life more convenient for Members of Parliament, we have become more convenient for the Executive. To make our sittings times shorter and our hours more social, we have brought about a position whereby our constituents are faced with largely undigested Bills. Without the House of Lords, legislation would be impossible for the judiciary to interpret or tackle. I feel ashamed in my surgery when constituents approach me and say, "Mr. Gummer, how could anyone pass that clause?" I look the matter up and find that that clause has not been discussed. The compulsory timetable—the guillotine; that foreign invention that the Government have forced upon us—is intolerable.
To reinforce those views, I invite my right hon. Friend to read the law report in The Times today on the case of Bradley. The court has been making similar points to his about the torrent of ill-considered and ill-drafted legislation.
I am glad that that is the case. The fact that a court has made the point explains why the problem is at the heart of the Bill. The relationship between the law makers and the law interpreters is necessarily uneasy—there is bound to be tension; there always has been—but such tension can work creatively as long as both sides remember their purpose. Our purpose is to produce good law so that judges can make good judgments. We have allowed the Government to emasculate us.
I stress to my hon. Friend Mr. Djanogly, who is on the Front Bench, that before he gets too enamoured of the wholly alien United States system, we have a parliamentary democracy and a key point in it is the ability of the legislature to keep the Executive under scrutiny and control. That means that the opposition—in the Government, of which there is a good deal, and outside the Government—must have the time to do that.
My worry about my party is that when we return to power we will say, "Well, they did it to us, so we won't give the powers back to the Opposition." I want to stress now that when we return to power, some of us will insist that our first action is to give back power to the people. That means that this House must have the opportunity to debate issues, such as the subject of our discussion, in the way in which we always did formerly, and thus produce legislation that is the envy of the world.
I agree with my right hon. Friend's comments. Earlier, he mentioned the Planning and Compulsory Purchase Bill. He may be interested to know that of the 92 clauses in the first measure, only 26 were discussed in Committee. That resulted in the vast part of the Bill having to go to the other place to be considered, probably in a rather rushed manner, before the Government decided—uniquely, in my political career—to recommit a Bill to another Committee. That is the method of the madhouse in dealing with legislation.
I will not pursue my hon. Friend's point about the Planning and Compulsory Purchase Bill. He did, however, draw our attention to the crucial issue that, if we are to agree to the major constitutional changes in the Bill, we should have time to discuss them. I say to the Minister that it would help to regain a consensus on an issue that really matters if, even from his relatively junior position, he could convince the powers that be that showing courtesy to the House by giving us time to debate the whole lot on the Floor of the House would help considerably. It would also mean that many, like myself, who have doubts would find themselves much closer to where he wants us to be—even though I do not think that we should be discussing this because we have other things to do.
So, is there a real problem with the present system? No, that has not been shown. Has there been a considered response? Manifestly not. Will there be proper scrutiny? Not unless the Minister is able to convince the powers that be that there should be. Lastly, there should be an effective outcome. I do not know whether the Minister has looked at the notice outside the new Constitutional Affairs Department. It bears an interesting, if ungrammatical, slogan: "Justice, rights and democracy". There is no comma after "rights", so we must think of rights and democracy together. I am not quite sure why, but there we are.
The slogan was invented by the present Lord Chancellor; I found that out because I asked a lot of questions about it. The interesting thing about it also illustrates part of the problem with the Bill: it mentions rights but not duties or obligations. I wrote and asked representatives at the Department whether they could explain why, when we are to have a new Department, we are for the first time creating a society in which we talk about rights but not obligations. Some of us believe that no human being—no creative being—can have rights, but that we can only have obligations. Our rights are found in the obligations of other people and institutions towards ourselves.
The problem with Tom Paine was that he was wrong. He did not understand the nature of obligation. The great advantage of emphasising duties and obligations is that we remove the selfishness that comes with people who say, "I've got my rights!" If we all thought a bit more about our obligations, perhaps we would understand that a society run on that basis would be much more likely to be one in which the rule of law would be the representation of our duties, and that the more fortunate we are, the greater those duties and obligations become. To set up a Department that refuses to include in its slogan the word "obligations" or "duties" is to set up a Department that starts by being fundamentally flawed.
I hesitate to intervene, but I remember answering an earlier question on this matter from the right hon. Gentleman. We cannot have justice or democracy without responsibility. That is the thing that connects citizen to citizen; we cannot have democracy or justice without it, and he knows that.
Then why does the Minister refuse to put it in his Department's slogan? This country is filled with people, both rich and poor, who believe that they have rights but not responsibilities. The only way to change the nature of our society is to make all of us insistent about obligations, starting with our own—with mine and the Minister's—and moving on to everyone else's. This is at the heart of the Minister's missed opportunity. I gave him the opportunity to change this. I asked him a question and waited for his response. It would not have cost much, when we are spending £30 million, to replace the word "rights" with "obligations" in the little slogan outside his new smart offices.
That brings me back to my final point. The effective outcome will have to be paid for. I began by suggesting that it had not been established that there was a real problem. Indeed, the Minister waxed so lyrical about the excellence of the system, the honesty of the judges, the independence of Lord Chancellors and the reticence with which the Law Lords behaved during debates in which they might have an interest, that he was unable to argue much of a case for the need for the Bill. He was therefore even less able to argue the case for the cost involved.
I know many people who would say that if we have £30 million, we should spend it on giving people more access to justice. There are people who cannot get their case heard because of the slashing attack on legal aid over which this Government have presided. It now takes people longer to get into the courts, and it is more expensive for them when they get there. This Government have achieved that. That £30 million could be very much better spent. I do not know whether the Minister is married—
Then this is an ideal opportunity for someone who has been married for 27 years to give the hon. Gentleman a small piece of advice. When one's wife asks, "Can we afford to do this?", the one argument that one can never put forward is, "Yes, but only if we don't do that." That cannot be part of the argument. The argument is always about doing both. That is a necessary part of life. The trouble with Parliament is that we are acting like that. Mr. Heath got up and said that we had to have the best legal system in the world and that if it cost a certain amount of money, that would be the amount we would have to spend. The Liberals are well known for doing this, as they have no hope of coming to power. However, if we spend it on that, I am afraid that we cannot spend it on anything else.
We have created a Bill whose justification has not been made out. It is not a considered response to a proper discussion. It will not be given proper scrutiny, and it will use resources that would be better used elsewhere. I am sorry that it has been brought before us and I wish that we were spending this time dealing with the issues that really matter, such as climate change or the way in which people who were already very poor have become poorer under this Government. The Government are not prepared to discuss those issues. Perhaps we could even have a debate about the Iraq war—an unnecessary and unacceptable war that we should have debated properly. We spent seven hours discussing it, yet we spent 200 hours on the Hunting Bill. This Government have no priorities and, above all, they do not know how to do things. They should not institutionalise the means of achievement, and that is why the Bill should be opposed.
It is a pleasure, as ever, to follow Mr. Gummer, although I am baffled by a number of the things that he said. I am left almost speechless by his comments about this Government putting people into poverty, when in fact we have rescued more than 1 million children from the poverty in which they were left by his Government, and by his complaint about cuts in legal aid, when we are spending more on it than ever before and are distributing it better.
I should like to get to the point of this debate—something that the right hon. Gentleman did not do to a great extent—and say that this is an excellent Bill. Its main provisions will bring about a long-overdue modernisation of our constitution and start the process of making the courts and the legal system citizen-centred public services, which, to be consistent with a thoroughgoing democracy, is what they should be.
I applaud the Bill's long-overdue commitment to the rule of law and judicial independence, and I congratulate the Government on introducing it.
I strongly support the substantial change to the office of Lord Chancellor. In particular, he will no longer sit as a judge, he will not act as a Speaker of the House of Lords and he will no longer carry personal responsibility for the appointment of members of the judiciary and Queen's counsel. One could say that the main need for the Lord Chancellor to offer a separate personal guarantee of independence of the judiciary has been much reduced. I will not repeat the two quotes that I have already given from the Lord Chief Justice, whose negotiating skills with the Bill must be applauded, but he said that the Bill offers a better guarantee of judicial independence. I agree with him. However, there continues to be a requirement that the Lord Chancellor should—indeed, must—defend judicial independence and ensure that the judiciary has the resources to exercise its function and in government to represent the public interest in the administration of justice. That clearly requires the Lord Chancellor to be a senior Minister, but it certainly does not require either of the two restrictions that have been put on it in the Bill: notably that the Lord Chancellor must come from the Lords and that he must be a lawyer—not a bit of it. A Minister in the Lords is no more and no less secure in a ministerial post than a Minister in the Commons. He is no better and no worse equipped to take a strong stance in Cabinet than a Minister in the Commons.
I take the point made by the Constitutional Affairs Committee that if someone at the end of his career is Lord Chancellor, as in the past—not least because he sat as a judge in the House of Lords, and such seniority is usually accompanied by maturity of years—he will not have a future to be interrupted if he defends the rule of law against his patron's displeasure. Another argument, of course, is that being Lord Chancellor in this place would be the pinnacle of anyone's achievements, but if he disagreed with his patron he could easily have that career ended, in suddenly imposed obscurity, instead of staying in that high-status, top-performing, challenging role. There is still a great deal of pressure, and while Ministers are appointed as they are there is no structural answer. There is only the integrity of the appointee and his or her strength of character. Those characteristics are to be found in this House every bit as much as in the other House.
No one who takes on the role now can be under any illusion: there will be a statutory duty on them to guarantee the independence of the judiciary and the rule of law. They will be called to account for their conduct of that duty and they will be called to account for any dereliction of it as severely in this House as they would be in the other place. This House is as quick as the other place to see any such dereliction. There is no justification for requiring the Lord Chancellor to be a Member of the House of Lords and there is an overwhelming argument the other way. He must be accountable for his departmental budget, which is more than £3 billion and approaching £4 billion now. He must be accountable to the electorate through this House as every other Minister is. I want to be able to hold the Lord Chancellor to account when a constituent is kept waiting in the courts because a rape case has inconsiderately been listed as a floater. I want to be able to call the Lord Chancellor to account when my local magistrates court is under threat of closure or to raise the thorny issue of anonymity in family court proceedings when legal aid is not available. I cannot do that if he is in the Lords: I should be able to do so. I have great respect for my hon. Friend the Minister, but the proper situation is that the Minister in charge should be in this House and a more junior Minister in the Lords.
Sometimes life is simply full of exciting invitations and I shall put that one next to the others. I am grateful for that kind offer.
My last argument is surely the unanswerable reason why the Lord Chancellor should be a Member in this House. The Tory proposal, as well as being impossible, is crazy. It is crazy to suggest that we should legislate to ensure that a Minister cannot be a Member of the House of Commons. It defies all sense. I might add that the Judges Council sees no reason why the Lord Chancellor should be a Member in the Lords rather than in this place. The judges are the very people who might feel undermined if it were necessary to have a Lord Chancellor in the Lords as a guarantee of their independence, so no one else has a leg to stand on in making that argument.
It is not necessary to provide that the Lord Chancellor should be a lawyer. One guesses that the next few post holders are likely to be so: it is a huge step to take. However, the composition of the job will change hugely. The equivalent of the Lord Chancellor in the Scottish Executive is not a lawyer, but she is doing the job very well. Of course, it is important to have close relationships between the Lord Chancellor and the senior judiciary, so that the Secretary of State can be well informed by them, but with that help he or she would assimilate the job in the same way—the example has already been used by my hon. Friend the Minister—as David Davis has assimilated all the intricacies of the Serious Organised Crime and Police Bill. He is not a lawyer, but he has managed that. My hon. Friend the Minister frequently shows his sophisticated grasp of complicated legal issues, but he is not a lawyer. One has to work hard, but it can be done. I do not buy the notion that the law is so arcane that no one but a lawyer can ever understand the Department, let alone be able to defend it in Cabinet.
The Law Society has said, and I agree, that requiring that the post holder should be a lawyer could create the perception that the Secretary of State's primary purpose was to protect lawyers, judges and legal interests, rather than the public interest. Lawyers are rarely seen as the voice of the people.
The Tories would require that the post holder should be a lawyer, and a particular kind of lawyer. He should have held high judicial office for two years, which I think means he should have been a High Court judge or more, or should have had at least 12 years' experience under section 91 of the Court and Legal Services Act 1990, which I think means he has to be a High Court advocate. That would restrict the pool of candidates for Lord Chancellor considerably. In any case, that pool is occupied by those chosen from the uniform elite whom we hope will be widened by the advent of the judicial appointments commission. To suggest that even as we try to open up the pool to academics, solicitors and the lower judiciary, we should preserve the top man's job for that little phalanx of people who already have higher court advocacy certificates is breathtakingly to miss the point. It simply does not take on board the urgent need for modernisation. I oppose totally both of those proposals and hope that the Government will see them off straight away.
I am pleased that most people now welcome the changes to the judicial appointment process. Such measures are not new. In 1972, a justice committee recommended changes. In 1992, I was privileged to serve on another justice committee, chaired by the eminent Professor Robert Stevens, which recommended change. It is 14 years since Lord Rawlinson proposed in the Courts and Legal Services Act 1990 that there should be change, so the idea is not at all new.
It is wholly inappropriate for a member of the Executive to continue to be responsible for selecting members of the judiciary. That is the real threat to judicial independence. Yes, people have behaved well, but shot through debates on the subject, both here and in the other place, have been comments that individual Lord Chancellors made characteristic appointments. Lord Mackay, it is frequently said, showed his independence of judgment by appointing Stephen Sedley to the High Court bench—a significant left-wing figure. Lord Elwyn-Jones appointed Sir Morris Finer to the High Court bench but did not appoint Lord Donaldson to be Master of the Rolls because in the 1970s national industrial relations court he fell foul of the then Labour Government.
The appointments are made by a party politician, whether he is in the Commons or the Lords, and some of them are good. The independence shown by some of our Lord Chancellors has been good but some of them are bad, and the basis of making those appointments will not do. An individual can make a good or a bad appointment and it is individual instinct to try to be fair or to stick resolutely to political patronage, but the way in which it is being done is unacceptable. Judicial appointments at all levels must be made on merit, on a transparent, fair, efficient and independent recruitment process that draws appointees on merit from the broadest possible field of candidates.
Modern recruitment procedures must be at the forefront, as must be modern recruiters. Of course, the judiciary must be heavily involved, but only within the modern framework of objectivity and neutrality. The judiciary must not dominate the process because it is the homogenous elite that has run the system for so long. It is no joke to say that there has been positive discrimination in favour of public schoolboys and Oxford graduates since appointments began.
I cringe and worry when people talk about the dangers of positive discrimination, as though we had started from some perfect position where people are selected only on merit. The opposite is true. I am not saying that appointments have been universally bad—not a bit of it. Most of them have been very good, but they have been confined to one class, which has repeated and repeated and repeated itself by selecting those who resemble it. That is not good enough for a modern and diverse state.
There have not been many serious mistakes. The calibre of the judiciary is generally extremely high—at least in the High Court. There have been mistakes; there have been people who were not up to the job intellectually. There have been people, too, who have no respect for the public who come before them, who think that it is their prerogative to sit in court and demonstrate how clever they are. They do not understand hardship because of their privileged background and demonstrate their cleverness by speaking in an arcane way, to the dismay and misery of people whose future depends on their decisions. Those are bad appointments not because those people are necessarily poor intellectually, but because of those characteristics. Some of those bad appointments would not have slipped through in a proper rigorous procedure.
As I have said on previous occasions, I worry far more about the quality of appointments to the Crown court bench than to the High Court and above. The irony is that at present those appointments have, on the face of it, little or no political input and are likely to have little political input, because they are carried out within the Department. Certainly if the situation is improved by a judicial appointments commission, I shall be delighted. There may be more criticism of those appointments than higher up the hierarchy.
There is certainly a qualitative difference between some of the people appointed to the Crown court bench and the usually very good people who are appointed to the High Court. None the less, when we talk about the calibre of appointees, we tend to mean intellectual capacity. Of course that is hugely important, but so, too, is being considerate to the public and having the understanding necessary to explain at the highest levels of our court system in plain English what one is discussing and, when addressing someone's counsel, trying to speak not in code, legalese or Latin, but in a way that the people who are paying for it and are entitled to it can understand. Having an understanding of that aspect of the judiciary job is not as universally available as good intellectual calibre, yet it is certainly a key skill. There have been some notable failures of that kind, while some potentially good appointments have stalled through the prejudice implicit in the current appointments system.
The right hon. Member for Suffolk, Coastal says that nothing in the Bill is urgent. I ask him to reconsider. Senior appointments—High Court and above—tend to come from QCs. I want to tell the right hon. Gentleman some of the things that Sir Colin Campbell and his commissioners unearthed in the process for appointing QCs. There are what we call secret soundings that are now not so secret; Sir Colin Campbell can get hold of them. Indeed, people who have been refused appointment to silk—a necessary gateway to achieving higher judicial appointment—can ask for feedback on what has been said about them.
What about the woman who found that a factor sufficient to merit inclusion in the feedback she was given was that one of the higher judiciary had referred to her having poor dress sense? Is that a qualification for becoming a QC? Another woman was told that she had done something lamentable in court. In the feedback interview, she said that she had not done it and that the claim was not true. The response was, "Well, gossip creeps in sometimes." That is not very satisfactory.
A woman was told that an affair that she had had 10 years before was still talked about by the judiciary and that she would not be welcome. They should not have been talking about the affair in the first place, but to talk about it 10 years later and to hold it against her as a reason for not appointing her was utterly absurd. Indeed, it is invidious. In the secret soundings, someone's marital status was said to be a problem— Sir Colin Campbell is discreet about exactly what that was. Someone else was described by a judge as not a leader of the profession, so they should not be appointed. What on earth does that mean? What we think of as a leader may not be what someone else thinks. If one does not obtain silk, one cannot get on to the High Court bench. Even if one manages to get through the gateway of discrimination once, one has to face it again from the same people next time around.
I am sure that those examples are interesting. Such cases are bad and ought not to have happened. We can all agree about that, but clearly such cases are not in the majority, bad as they are individually. I am concerned about the future. By and large, we agree that the judicial appointments commission is a good thing, although we need to worry about the detail. Can the hon. and learned Lady move away from the points that she was making about previous mistakes or bad policies and urge us to support the Bill in relation to the question of the Lord Chancellor or the supreme court? I fully sympathise with her concerns, but they will not help us to be persuaded about the overall merits of the Bill.
I shudder at the utter complacency of that intervention, which suggests that those atrocities of injustice do not merit being dwelt on and that one should hurry up and get on with something else. I know that the hon. and learned Gentleman comes from a party that does not welcome women to its higher roles, but it is really time that the Conservatives appreciated the need to come into the modern era and to understand that if they—like this system—sanction discrimination against women, not many women will vote for them.
When such things are known about how the process works, it is not surprising that many people hide their merits under a bushel. It is pretty well known that it is much harder for women, and certainly much harder for people from ethnic minorities, to get into the judiciary. Surely, it is obvious that the wider the pool of qualified people, the better is the calibre of the appointees.
I have heard it argued, too—in fact, I am vaguely surprised that Mr. Garnier has not said it—that women have only fairly recently come to the Bar, so we cannot expect many of them to have filtered through to the top. That is certainly the Tory argument in the Lords to try to justify what occurs because of the discrimination to which I have referred. Women have been allowed at the Bar since 1922, so someone with 70 years' call could be present at the Bar at the moment.
In 1992, when I was on the committee for justice, there were disproportionately too few women in high office for the number of women who had 15 to 20 years' call at the Bar then, and we are now 12 years on. So that is not an argument either—sheer discrimination is the argument, and I make no bones about saying that. I know senior people at the Bar who are black, who are female and who are gay who are better in many ways than some of the people who are currently on the bench, but they have not been put on to the bench. That is bound to be so, as long as there is discrimination.
I applaud the introduction of a system that has every hope of finding the means of fairer selection, to draw from the array of diverse talent that is available and increase the calibre of our already respected judiciary. That is the last point that I want to make about the urgency of the judicial appointments commission, given what has been said by the Opposition. Our judiciary is very good, but we must make it better and this is how we can do so. At last, we might start to have selection for the judiciary on merit.
I strongly support the Government's decision to establish a supreme court separate from the legislature and in place of the Appellate Committee of the House of Lords. It is undesirable for members of the highest court in the land to serve as members of the legislature. The Joint Committee on Human Rights said that the creation of the new supreme court and the disqualification of judges from sitting in Parliament makes it less likely that violations of the European convention will occur in practice. Mr. Grieve is right to say that there is controversy in legal circles about whether there is any problem under the convention, but surely the Committee is right to suggest that such violations would be less likely.
Professor Jeffrey Jowell has said that the EU would not now accept for admission a nation that had its senior judges in its legislature. It is a marker of how far out of step we are with international thinking that we have allowed that obvious anomaly to linger so long. No Commonwealth country has adopted that curious structure, although many base their legal systems on ours. Canada, Australia, New Zealand and South Africa do not have working judges in their legislatures. The hon. and learned Member for Harborough referred to that aspect of the Bill as intellectual guff, suggesting that we should stand our individualistic ground and not be pulled into some sort of cheap version of a constitution by trying to resemble other people.
I thank the hon. and learned Lady for politely giving way. I am prepared to withstand her insults; I am prepared to withstand her arguments; but I am not prepared to accept her utter failure to understand that what I was talking about in relation to intellectual guff were the arguments proposed by Mr. Soley, who is no longer here. The hon. and learned Lady may make her arguments if she wishes, but will she please base them on what I said, not on what she thinks I said or on what she likes to assume all Tories, Conservatives or men say. It would have made for a better argument if she had listened to what I said, rather to what she thinks I said.
The hon. and learned Gentleman must grow up or get out of the kitchen. He said that moving towards other constitutions by removing the judiciary from the legislature, as proposed by my hon. Friend Mr. Soley, was intellectual guff. I do not mind learning from Canada, Australia, South Africa or any other Commonwealth jurisdiction. The hon. and learned Gentleman really must learn to control his words.
The supreme court is a very good and important development. The ending of the system whereby members of the senior judiciary have seats in the Lords requires the establishment of an effective channel of communication between the judiciary and the legislature. There may well be times when the legislature wants directly to benefit from the experience and expertise of the judiciary.
I support clause 6, which will enable the chief justice or his equivalent in Scotland and Northern Ireland to lay written representations before Parliament, and a parliamentary Committee through which the judiciary can maintain a dialogue with Parliament might also be appropriate. The Constitutional Affairs Committee has furthered such relationships. Its Chairman, Mr. Beith, enjoys good relationships with members of the judiciary, who feel free to give evidence and make their views felt. I do not regard that as a problem, but it necessary to ensure that those channels exist now that the Law Lords will disappear. That change is good constitutionally, and good, rational channels of communication can be set up.
There are also practical reasons for such a change. First, as the senior Law Lord has said, it makes the position much clearer, particularly for the public who find it difficult to understand and can muddle the role of the House of Lords as part of the legislature and as a court. Let us consider the Hunting Act 2004 for a moment. Deciding whether the Parliament Act 1949, by which the Act was passed, is lawful will ultimately be decided by the House of Lords. Do people understand that that judgment will be made by people who could have voted against the Hunting Bill in the first place because they technically remain members of the House of Lords? Let us consider how undesirable and confused that position is.
Let me give two practical bits of evidence to show why the change is important. All the lawyers present and many others will know about the doctrine in Pepper v. Hart, which allows the courts to look at Hansard to understand the purpose of any legislation if it is ambiguous. I was involved in a House of Lords case in which a colleague and I were trying to persuade the House of Lords to consider Pepper v. Hart, but after suitable argument the House of Lords declined to do so. Those involved did not want to be influenced in their interpretation by what appeared in Hansard, but three of them were there when it was said, taking on the role of helping to sculpt the legislation, so presumably they were taking it seriously. Does that not make a pretty powerful point?
In a further House of Lords case in which I was involved the then senior Law Lord came in after the luncheon adjournment and said that he had to make it clear that he had been lobbied on how he should vote on a part of a certain Bill. Just before lunch, I was taking their lordships through that Bill to try to make a point that the legislative thinking in the Act in force must have been A because the new Bill was carrying on that line. He was considering a Bill as a guide to interpreting another Act, while being lobbied politically to vote against it. That is an extraordinarily complicated and tortuous position for anyone to be in. Of course, the Law Lords can set aside what they hear in one role and compartmentalise their thinking—frankly, there are such good people in the House of Lords—but there is a danger that they can over-compensate for having heard what they feel they should not have heard.
It is an extraordinarily unhappy situation in a whole variety of ways. I agree thoroughly with the senior Law Lord, Lord Bingham, that a modern, clear and quite separate supreme court is very important. About half the Law Lords feel unhappy to be in the Lords now. They think that it is an inappropriate location and they will not speak at all in debates. They therefore play no useful role.
The House of Lords is an excellent judicial tribunal. It shows every sign of wanting to get to the right result. It does not, as many other courts do, merely play and argue with counsel; it argues among itself and is truly intellectually stimulated by an argument. This court can play a great role in our democracy whether it agrees with the Government or, as it has done recently, disagrees with them. It should be freed and clearly seen to be having that role, with due standing, its own building and due respect for its calibre being judged on the merits.
I support Lord Bingham, Dame Brenda Hale and Lord Steyn who are in favour of the supreme court. I support Lord Woolf, who in evidence to the Select Committee about the Lord Chancellor as now configured, said:
"I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or any particular title to enable him to exercise these functions."
"piece of great reforming legislation".
I agree with him that
"it will rank in importance with the great constitutional instruments of the past".—[Hansard, House of Lords, 7 December 2004; Vol. 667, c. 759.]
I sympathise with Vera Baird. Her voice is clearly failing her, and I sympathise, not least because I am in a similar position. I am rather glad that this is not one of those occasions—at least, I fancy not—when I shall have to shout down hon. Members, on either side of the House.
There are clearly aspects of the Bill that can properly be supported. It would be rather surprising if that were not the case. It is not, in fact, the Bill that the Government first introduced in the other place. Indeed, I think that some 400 amendments were made there. I can therefore say that within this Bill, there are substantial aspects with which we can associate ourselves.
The reasoned amendment moved by my hon. Friend Mr. Grieve seems to encapsulate the criticism of the Bill remarkably well. It was echoed by my right hon. Friend Mr. Gummer. I happen to think that the Bill is largely unnecessary; it is most certainly bureaucratic and expensive.
I want to say something about the Lord Chancellor, something about the supreme court, something about the establishment of the judicial appointments commission and, briefly—Mr. Speaker made it plain that we could do this—something about the timetable motion.
I do not know whether I have to declare an interest in that both my father and grandfather were Lord Chancellors. I certainly accept that the role of the Lord Chancellor has changed and is bound to change to take account of the change in circumstances. The role and office cannot be frozen in aspic. There have, in fact, been huge changes since my grandfather first came to this House in the 1920s and shortly afterwards went to the Lords as Lord Chancellor. I suppose that the most important change has been the desire for much greater openness than was then the case. Moreover—I think that this was important for the role of the Lord Chancellor in connection with appointments—there were far fewer judicial appointments in those days. I think that in my grandfather's day the King's bench division had 12 members; it has nearer 100 now. It is also true that in those days, the Lord Chancellor knew, or had access to those who knew, most of the people who were likely to be applicants for judicial office.
The legal profession is now not very well represented in this place or in the other place. There are not many practising barristers in the House, and most of those who practise—I am one such—practise largely at the criminal Bar. It is therefore increasingly difficult for Governments to find either Attorneys-General or Lord Chancellors who can be appointed from Members who have served in this place. However, I happen to think that there are substantial advantages in having as one's Lord Chancellor or Attorney-General someone who has served in this place.
I certainly accept that a number of the roles of the Lord Chancellor must change. I shall come to the judicial appointments commission, but I do not think that the Lord Chancellor should be responsible for appointments to judicial office. It would be a serious mistake, as a general proposition, for Lord Chancellors to sit judicially, although it is true that my father sat judicially on a number of occasions, and attached a very high importance to that role. He was probably wrong, but his judgments were, on the whole, rather good ones.
That point does not address the role of the Lord Chancellor. That role is extremely important because over 10 years—in fact, more than that—there has been a whole flood of Home Office-driven legislation that has had a great impact on the rights and liberties of the citizen. I do not want to go over disputed ground about the previous Home Secretary. I regarded him, and I said so many times in this place, as a deeply illiberal Home Secretary. Much of the Home Office legislation that we are currently contemplating, and that we have contemplated in the lifetime of this Parliament, has been deeply illiberal and deeply authoritarian. I have opposed it and I deplore it— including, incidentally, the Identity Cards Bill, on which I had the misfortune to disagree with my own party's line.
It is of critical importance that within the Government, there should be another source of influence and authority to set against the policies of the Home Office. If I ask myself where that person can be found, the answer is that he or she has to be found within the office of the Lord Chancellor. I cannot easily identify any other source of comparable influence and power. It is important therefore that the person who carries out the functions of the Lord Chancellor should have as much status as we can give him or her, and as much independence as well.
I understand the argument of the hon. and learned Member for Redcar and of the hon. Lady for Stafford.
I am sorry—the hon. Gentleman.
I understand the argument to the effect that it is a good thing for senior Secretaries of State to be in this place. In principle, I agree with that. However, I ask myself a different question: what is the likely relationship between the Secretary of State for Constitutional Affairs sitting in this House and the Home Secretary? The truth is that the Home Secretary will always prevail.
When I look back, however, on the Lord Chancellors whom I have known or have been faintly acquainted with during my political life, who sat in another place, that has not been the case. On the Labour side, there were Lord Gardiner, Lord Elwyn-Jones and, of course, the previous occupant, Lord Irvine of Lairg. On the Conservative side—just to cite a few—there were Lord Kilmuir, Lord Dilhorne, Lord Mackay and, of course, my father. All these were people of a very considerable authority, which they could set against the power of the Home Secretary. Most of the debates—this goes to the question of accountability—occur within the Government, not on the Floor of either Chamber.
My worry is that if we insist on the purist doctrine that Secretaries of State should sit in this House, we could be dealing with a Minister on the make—to adopt the phrase used by my hon. Friend the Member for Beaconsfield. There are huge advantages to there being a requirement for the Lord Chancellor to be a lawyer and a Member of the other place who is at the end of his or her political or judicial life, because he or she will thus have nothing to gain and nothing to fear.
My hon. Friend is absolutely right. Not one of the Lord Chancellors whom I cited would have been described as a cheerful chappie. We do not want Lord Chancellors who are cheerful chappies, but people who bring real authority, pre-eminence and distinction to the role, because only in that way can an overbearing Home Secretary be faced down.
I hope that the House, in its Committee form, will insist that the Lord Chancellor be a lawyer, that the role of the Secretary of State for Constitutional Affairs should always be designated as one that the Lord Chancellor should perform, and that the Lord Chancellor should be a Member of the other place, so that he or she will by then be beyond fear or favour. We need to make every attempt to reinforce the status of the Lord Chancellor.
Like so much done by the Government, the words "supreme court" mislead. The title suggests a genuine separation of powers, and in particular, although this is not stated, the power to strike down primary legislation. As a general proposition—we will see what happens during the challenge to the Hunting Act 2004—the supreme court will not have the power to strike down primary legislation. In truth, the supreme court as described in the Bill will largely be the Judicial Committee as it now sits, but sitting in a different, more expensive place and underpinned by an extremely expensive infrastructure. As my right hon. Friend the Member for Suffolk, Coastal implied, if it is not broke, why seek to mend it? There is no overwhelming requirement for change, so I would not change the structure.
I regret the prohibition on members of the supreme court from speaking in the other place, although I am assuming that we will not have a wholly reformed other place. I hesitate to say this in the presence of my hon. Friend Sir Patrick Cormack, but I am in favour of a wholly or largely elected second chamber.
My hon. Friend thinks that my point is unsound, but he and I have always disagreed about that.
Within the parameters of the other place as it now is, I want members of the supreme court to be able to speak. I appreciate that Lord Bingham has constrained the circumstances in which such people should speak, and that there is a division of opinion about that. It is certainly the case that the Law Lords should be careful not to express themselves in a partisan manner. They must always express themselves temperately and bear in mind the fact that they might have to adjudicate on matters that are discussed in the other place.
Of all those in this House or in the other place with judicial experience, the Law Lords have the most current expertise across the broad spectrum of legal issues that Parliament must discuss, ranging from the complex commercial questions to more humdrum issues of family or criminal law. They have knowledge of great constitutional issues, such as the impact of the European convention on human rights on the way in which the courts operate. The truth is that the Law Lords have greater current expertise than anyone else, because as I have already said, most hon. Members who are practising barristers or solicitors practise at the criminal Bar. Although there are competent barristers in the other place, they tend to have rather specialised practices. For example, Lord Grabiner, for whom I have high regard, has a specialised commercial practice. Of course if we rely on ex-Law Lords, we are dealing with individuals with experience that is not quite as current as one might wish. I greatly regret the prohibition on justices of the supreme court from speaking in the other place, and I hope that the House, in its Committee form, will reconsider that.
I turn to the judicial appointments commission. The role of appointment should not be performed by the Lord Chancellor or his officials, although I accept that there was a jolly good case for that in the days when the Lord Chancellor knew most of the applicants, or could at least have a private word with the heads of division who did. However, those days have gone and one cannot hark back to them. I agree with the principle of the judicial appointments commission. It is undesirable for the Lord Chancellor's officials to perform the functions that were historically performed by the Lord Chancellor, because they are not well placed to determine the merits of a, b or c. However, we have chosen one of the most remarkably bureaucratic and complicated ways of making appointments that I have ever read. There is a powerful case for depriving the Minister—or Lord Chancellor—of any residual power and giving the power exclusively to the commission, but that is a matter for debate.
I have two real worries about the role of the ombudsman. I doubt whether people who are dissatisfied with the decisions of the judicial appointments commission should have the right to apply to an ombudsman for remedy. I remark in passing that Back Benchers with desires that remain unfulfilled, or Ministers who are disgruntled because they have been passed over or sacked—I am casting no personal aspersions about any hon. Member in the Chamber—do not have the right to appeal to an ombudsman.
Let us consider what is being suggested. If people were to make a complaint about process, I wonder whether the cost and inconvenience of the ombudsman would be proportionate. Indeed, the matter could probably be raised with the parliamentary ombudsman as is. Is it suggested that the ombudsman should be able to express a view on the merits of an appointment? At that point one enters a difficult area, because when one makes appointments of any kind, one's judgment is often subjective. One might have real doubts about a person's integrity, competence, good manners or judicial temperament. It might be difficult to make such subjective judgments stand up evidentially, but they may none the less be real and well founded. I fear that if we set up a process that allows people to challenge the merits of judicial appointment, we will find ourselves landed with many appointees who should not be appointed, because the commission will play for safety and rely only on reasons that can be evidenced.
The question of merit and diversity is related to that matter, and although it is a small point, it causes me considerable concern. I entirely endorse a point made by my hon. Friend the Member for Beaconsfield: merit should be the only criterion for appointments. By all means let us enlarge the pool as much as possible. I agree that it has been artificially constrained for many years. We should have a wide pool, but by goodness, let us stick to the criterion of merit and no other. The power that the Bill gives the Minister, or Lord Chancellor, to give guidance—for example as to diversity—could be misused.
As to disciplinary functions, this is an enabling Bill. It enables the Minister, or Lord Chancellor, to set out processes for disciplining members of the judiciary. Again I preach caution; we need to look at this more closely in Committee. It is perfectly true—the hon. and learned Member for Redcar knows this as well as I do—that historically there have been some pretty eccentric folk on the bench. In my professional lifetime I have known some, and even since I went back to the Bar in 1997 I have come across one or two very odd figures who probably should not be there. I hope that the judicial appointments commission will prevent that from happening. In any event, peer pressure and the word from the senior judiciary can be brought to bear.
I would, however, be very sorry if a disciplinary process curbed the independence of the judiciary. The hon. and learned Lady adduced from one Minister— I forget which one—the fact that each year there are between 1,000 and 1,200 complaints about the judiciary. We all know from our constituency experience that litigants, whether male or female, are frequently dissatisfied by the result. Very often they express their dissatisfaction by saying, "It was unfair," or, "He"—or she—"behaved badly. It was judicial misconduct." I do not want to see the judiciary cowed in any way. We look to it, in part at least, to defend the citizen against the over-mighty Government. Let us then be cautious about the disciplinary process.
I turn briefly to the timetable. Mr. Speaker was good enough to say that we could speak about it, provided that we did not go on too long—and my hon. Friend Mr. Shepherd and my right hon. Friend the Member for Suffolk, Coastal have made the points that I would have made. This is a very important Bill. On the Floor of the House, where these things are traditionally discussed, we will be able to discuss only fragments of the Bill, and those fragments have been selected for us not by discussion between Front-Bench Members, but by the proposal of Ministers.
I acquit the Under-Secretary of State of responsibility. I suppose that he did not know; it was not his decision. [Interruption.] No, I see, it was not his decision. I do not blame him; he is only an Under-Secretary. However, it is not right. If the proceedings were to be timetabled, there ought to have been discussion between Front-Bench Members of all the major parties and the minority parties. The House is being impoverished by the process. Not only that, but democracy itself is being impoverished. I hope that the House will rally, and vote, against the timetable motion.
I am not sure that today's debate is a very good example of the stewardship of time. I like to think that we could have more time for these proceedings on the Floor of the House, but with discipline in how efficiently we used it to ensure that a number of important detailed points are considered.
I want mainly to refer to what the Constitutional Affairs Committee has said and done on the matter, and the extent to which our concerns have so far been met. As several hon. Members have said, the problems go back to the way that the matter was introduced, as a back-of-the-envelope decision in a reshuffle. When one is reshuffling one's Ministers, one does not call them in a fortnight before and say, "I'm planning to do this. What do you think? Will you get your officials to do me a paper about it?" The previous Lord Chancellor was no doubt told at 3 o'clock in the afternoon that his services were no longer required and that his advice on the proposals or that of his officials was not needed.
That is a hopeless way to embark on constitutional reform and it was particularly galling for those of us who broadly support the measures that the Government want to take. They managed to convey the impression that the proposals were designed to weaken and politicise the judiciary, which is precisely the reverse of the intention and, I hope, of the effect. The way that the matter was introduced made it much more difficult to argue for the reforms in principle and then get the detail right.
The problems that the Bill is designed to solve are primarily ones of principle and perception, not of practice, except in judicial appointments, to which several references have been made. I welcome the agreement that has now emerged on the necessity for a form of judicial appointments commission. Even in that case, no one is arguing that the most senior judicial appointments in recent years have been other than very good, or that the quality of our judiciary is not envied around the world, but we can still make improvements and there are certainly people who are excluded from the judiciary.
That was the main motivation for changing the system in Scotland, which took on a judicial appointments committee under the guidance of my friend and former parliamentary colleague, the Deputy First Minister, then the Justice Minister, Jim Wallace. That was partly because there was a feeling in many parts of the Scottish legal system that people were overlooked for judicial appointments because they were not part of the Edinburgh mafia, as it tends to be called, and partly because Scotland had a more recent history of political appointments to the judiciary than England and Wales. When we examined the system in an earlier report, we found that it was working reasonably well and were hopeful that an appointments commission, admittedly on the much larger scale required for England and Wales, would be of real benefit.
When the reforms were announced, the Select Committee set about working and reporting on them, building on the work that we had already done on the judicial appointments commission. Most of the Committee's recommendations have been taken up by the Government, some willingly, some reluctantly in response to further pressure in the Lords and some on the basis of defeats in the Lords, a number of which the Government do not propose to reverse. Some of what we were saying was bolstered by the concordat between the Lord Chief Justice and the Lord Chancellor, which Vera Baird said was a successful piece of negotiation. Indeed, it has been referred to with a degree of envy by the Lords Chief Justice of several other countries as an impressive example of how to play one's cards effectively. The Lord Chief Justice did us all a service by getting certain things firmly clarified and accepted on all sides.
Among the things that we said was that the Bill is so important that it should be introduced as draft legislation and given proper consideration. The Government rejected that, but the objective was achieved by the decision of the House of Lords to set up a Select Committee and the decision alongside that, by all parties, to allow the Bill to be carried over into this Session. If that had not happened, it would have been rushed through, if the Lords had agreed at all, in the previous Session, and that would have been bad news. I have to say that I disagreed with my Front-Bench colleagues on that. In their determination to support the proposals, they felt unhappy about supporting the motion to refer the Bill to a Select Committee. The end result of the process is that the Bill has had much better consideration and can still be introduced within a reasonable time.
Another recommendation that we made related to the fact that the court is partly a United Kingdom court and partly the final appeal court in the separate jurisdictions of Scotland and Northern Ireland. None of that had been thought through when the proposals were first produced. I do not think that a moment's consideration had been given to that. We asked many questions and produced a lot of detailed information, and, to be fair to them, the Government responded fully, made significant amendments to the Bill and clarified a number of matters crucial to Scotland and significant also in Northern Ireland.
We also argued not only that supreme court judges should not be in the Lords—that is certainly my view—but that if there was any prospect of retired judges being appointed to the House of Lords while it continues in its present form, either all of them should be so appointed, or none of them. There should be no question of the Government picking those supreme court judges that they liked for preferment to the House of Lords. That would be undesirable and the Government accepted our view on that, too.
We stressed heavily the importance of the court's independence, including its financial independence. We felt that its financial and operational independence needed to be guaranteed and that its budget needed to be secure. We looked at examples, and at Australia in particular, to see how that could be done. To a large extent, that has been accepted. The Department for Constitutional Affairs is still involved, but the chief executive will be an accounting officer in his own right and several detailed improvements have gone some way to meet the Committee's recommendations.
We also felt strongly that the court should not operate until it had its own premises. The problem of perception could not be dealt with by having roughly the same people sitting in the same building—the House of Lords—being served by the same staff, and by saying that some new supreme court had been created. We therefore welcome the fact that the Government accepted that the court needs its own building before it can start work properly. My view was that, if everything else could be settled, Middlesex Guildhall was the right place. I disagreed with Lord Bingham on that, but he is getting much of what he wants anyway, so we can reasonable argue with him on the merits of which building to use.
The Committee felt that the Lord Chief Justice should be primarily responsible for discipline and that that should not be a role for the new-style Lord Chancellor or whatever kind of Minister was to come. That, too, has largely been accepted and to a significant extent was sorted out in the concordat.
We strongly recommended an appointments commission, but even we did not anticipate how many versions of judicial appointment would emerge at the end of the process. Effectively, we have a three-tier process—an appointments system for the supreme court, an appointments system for the higher judiciary and an appointments system for all the lower ranks of the judiciary. For the first two, judges are very prominent indeed. Again, the Lord Chief Justice's negotiating skills played a significant part. That will have met, to a degree, the concern of the majority of my Committee that the commission should be chaired by a judge—not a view that I shared. It is a rare occasion on which my view is defeated by a Committee that I chair and a situation that I try at all times to avoid.
The Committee expressed some strong views on the role of Lord Chancellor. We said that part of that role
"is the protection of the judiciary from political pressure in Cabinet and, when necessary, in public."
The previous Lord Chancellor was prepared to act in such a way, and did so on one occasion in front of the Committee. In paragraph 13 of the report, we said:
"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 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."
The Minister smiles—whether he sees himself in that position in future, I do not know.
The Committee felt strongly that such independence was important and we were regularly confirmed in our views by outbursts from Ministers that seemed to some of us to be somewhat threatening towards the judiciary. There was a classic example of that from the previous Home Secretary, who when addressing the Police Federation—a good occasion on which to get a cheer from the gallery—said, "We only want judges who will help us to do our job." That was not a good basis on which to set out the proposals. It further underlined—certainly in my mind—the importance of retaining a Minister who accepted responsibility in Cabinet for sometimes slapping down other Ministers who did not recognise the importance of judicial independence.
We anticipated something that the Government did not anticipate: how important the issue had become. The Government did not seem to think it terribly significant, even as the consultation went on, but it became clear that among members of the judiciary in particular the status of Lord Chancellor was regarded as an important safeguard for their position. We recommended that the office of Lord Chancellor should remain, at least for the time being, in its more restricted form—shorn of judicial appointments and, almost certainly, of responsibility for chairing proceedings in the House of Lords. I welcomed the Government's ultimate acceptance of that when it came by way of amendment in the Lords.
I personally do not think that it is essential that the Lord Chancellor should either be in the House of Lords or be a lawyer, but I am still concerned about how we achieve the Committee's objective of ensuring that the Lord Chancellor is not awaiting further political advancement and has the authority to challenge other Ministers on this most fundamental issue. I can think of many people who could do the job who are neither lawyers nor Members of the House of Lords, so I am not especially attracted by the amendments that their lordships passed as a result, to a large extent, of such motivation. Ministers must think further about the matter, so that we can ensure that the person who holds the office of Lord Chancellor and is responsible for relations with the judiciary has the status, authority and independence that he needs to be able to do that job.
I shall mention one other area that has not attracted much attention. The proposals on ecclesiastical appointments arose out of the original intention to remove the Lord Chancellor altogether. At the end of the day, the Government decided to move the appointments to the Crown, thus allowing them to continue to be made by the same people who are making them at the moment in No. 10 Downing street. That reflected the evidence session that the Committee held on the subject. We did not make any recommendations, but we had an interesting evidence session in which much of the weight of the evidence was to the effect, "Do not disturb this system, it is working very well." Those who wanted to change it could not agree on what to change it to. The argument that the matter should be left in the hands of public servants, who were unusually highly commended in the Committee's proceedings, clearly weighed with the Government.
On a large number of issues, the Committee's work was well justified, because it influenced the course of events. Many of our recommendations have been accepted, either willingly or slightly unwillingly by the Government, and we shall consider what happens in Standing Committee with the hope of reporting to the House prior to Report any further conclusions that we might reach.
I preface my comments by saying for the record that, like Mr. Kidney, I am a non-practising solicitor, albeit of the Scottish variety.
I shall focus my remarks on the detail of part 3, which deals with the proposals for the new so-called United Kingdom supreme court. Much has been said about the way in which the proposals came forth. It is certainly true that their timing was the direct result of the botched reshuffle in June 2003. As Mr. Beith said, at the time of the announcement of the creation of a supreme court, it had been forgotten that final appellate civil jurisdiction—appeals in civil matters—still lay with the House of Lords. That fundamental issue had been entirely forgotten down here in Westminster.
There was no prior consultation with the Scottish Parliament and Scottish Ministers, which was a breach of the devolution concordats, which exist to deal, inter alia, with issues such as the important proposed changes to devolved areas of Scots law. At the time of the furore in Scotland when the proposals were first announced, the Scottish First Minister was asked his views on the failure on the part of the Prime Minister and the Westminster Parliament to consult him. He said simply that there was "absolutely no reason whatsoever" for the Prime Minister to have consulted him on such a major constitutional change. That says an awful lot about the limited lengths to which Scotland's First Minister will go to stand up for the Scotland's interests, a key aspect of which is the independence of the Scottish legal system.
The substance of the proposals has caused much controversy in Scotland. On the one hand, the proposals represent a missed opportunity to end the 18th-century anomaly whereby final appellate jurisdiction in civil cases lies south of the border, while on the other, serious questions remain about the compatibility of the proposals with the founding constitutional document of the Union between Scotland and England—the 1707 treaty of Union. On the first point—that an opportunity has been missed to repatriate to Scotland final appeals in civil cases—in post-devolution Scotland, where the Scottish Parliament has jurisdiction over both criminal and civil law matters, why is it deemed necessary, desirable or logical that final appeal in civil cases lie south of the border? There has never been a final appeal to the House of Lords in criminal cases in Scotland and it does not seem sensible to continue the anomaly in Scottish civil law. That is especially important when seen in the context of the specific proposals made in the Bill, which states—probably for the first time in statute—that the final judgments of the new supreme court are not to be binding outwith their respective jurisdictions. It has been said that the judgments will enjoy persuasive effect, but if they are not to be binding outwith their respective jurisdictions, why on earth do we need to go to London to have a final appeal heard in a Scottish civil law case? That makes no sense in post-devolution Scotland.
The fact that civil appeals lie with the House of Lords is simply an historical quirk. Now, in 2005, we have the ideal opportunity to end the anomaly and repatriate to Scotland final appellate jurisdiction in civil cases. That view has been echoed by many in Scotland both within and outwith legal circles. Professor Black, the renowned and respected professor of Scots law at Edinburgh university, described the present system of sending final appeals in civil cases to London as "crazy". He added:
"I've always thought that civil appeals should be decided in Scottish courts . . . A UK supreme court should only be for const