Part-time Judiciary: Appointments

– in the House of Lords at 2:55 pm on 29 November 1999.

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Photo of Lord Goodhart Lord Goodhart Liberal Democrat 2:55, 29 November 1999

asked Her Majesty's Government:

Whether they propose to make changes to the system of appointment of assistant recorders and deputy judges in England and Wales in the light of the decision of the High Court of Justiciary in Starrs v. Procurator Fiscal, Linlithgow.

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, I am currently considering the implications which the recent judgment of the High Court of Justiciary in Scotland may have for the part-time judiciary in England and Wales. I shall make a statement to the House when that consideration is complete. I am therefore considering all part-time appointments in England and Wales, their terms and conditions, and tenure with a view to considering whether any changes need to be made. That is part of a government-wide audit of compatibility with the European Convention on Human Rights. I assure the House that that consideration is being carried forward with all deliberate speed.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, I am grateful to the noble and learned Lord for that Answer. It establishes that the matter is being taken with appropriate seriousness by the Government. Will the noble and learned Lord accept that this is another, and very strong, argument for the establishment of a judicial appointments commission to take judicial appointments out of the hands of the executive?

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

No, my Lords. However, I want to make plain, as I have done previously, that I certainly do not exclude the possibility of a judicial appointments commission. However, I await the report of Sir Leonard Peach, the former commissioner on public appointments, who is auditing the whole system of appointments, both of Queen's Counsel and to the Bench in England and Wales. That report will be published, and I have no doubt that it will inform our considerations well.

Photo of Lord Hogg of Cumbernauld Lord Hogg of Cumbernauld Labour

My Lords, does my noble and learned friend agree that the matter has been well handled in Scotland where the legal system has been entirely in the hands of the Scots for many centuries? Does he further agree that any knock-on effect on English law can only benefit from the considerable experience that Scotland has had in dealing with matters of this kind?

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, I yield to no one, including the noble Lord, in my admiration for the genius of the Scottish nation. However, judicial independence is part of the constitutional culture of Great Britain. I do not believe that any assistant recorder or deputy judge either feels that he is not independent or, in practice, acts other than independently and impartially. A full and proper consideration of the issue in England and Wales will consider the need for independence and impartiality against the background of our long-standing constitutional and professional culture and standards.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, does the noble and learned Lord the Lord Chancellor accept that many of us would view with considerable concern the removal of judicial appointments from the traditional system of appointment by the Lord Chancellor? While I am addressing the House, will the noble and learned Lord further accept that he is not a Law Officer?

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, I have already indicated that I maintain an entirely open mind on the subject of the judicial appointments commission. I have said that many times and I repeat that we will all profit from shortly reading--I hope before Christmas is upon us--Sir Len Peach's exhaustive report into the whole subject.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat

My Lords, in considering changes in the structure of law and justice in this country, have the Government identified any deeply entrenched forces of conservatism in the law? We note that there has been a vigorous attack on the other two liberal professions of medicine and teaching. Do the Government acknowledge that there are similar forces in the legal profession, particularly the Bar? Could the Government by any chance be treating lawyers and judges more gently than doctors and teachers?

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, my experience of lawyers--which is considerable--is that they are tough and robust and that they speak out for clients and vigorously for themselves--and good luck to them.

Photo of Lord Mackay of Drumadoon Lord Mackay of Drumadoon Judge

My Lords, can the noble and learned Lord the Lord Chancellor confirm that the wide-ranging review to which he referred will proceed on the basis that the case of Starrs v. Procurator Fiscal, Linlithgow was correctly decided?

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

No, my Lords. If the noble and learned Lord the Lord Advocate so decides--and for all I know he has come to a decision at this moment--it may be subject to appeal to the Judicial Committee of the Privy Council which would then have the last word.

As regards the precedent value in England, it is of some but not great value. The considerations that most influenced the High Court of Justiciary in Scotland were that temporary sheriffs were appointed for a year and might have their appointments revoked--"recalled" is the statutory language--by the Secretary of State without assigning any reason. The whole English and Welsh context will have to be examined for what it is.

Photo of Baroness Buscombe Baroness Buscombe Shadow Spokesperson (Trade and Industry), Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Spokesperson (Social Security)

My Lords, will the noble and learned Lord the Lord Chancellor state whether the case has any implications for United Kingdom tribunals? Those may be employment tribunals, social security tribunals or VAT tribunals which are frequently chaired by lawyers in private practice who serve as tribunal chairmen on short-term appointments with no security of tenure. We understand that many seek and would be happy to accept full-time employment whether as judges or on tribunals. Further, how many tribunals would be affected?

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, in principle it is possible that part-time judicial appointments to tribunals are affected. That is part of the consideration which we are undertaking at present. However, I am sure that most people would think it entirely reasonable for suitably qualified and experienced professional lawyers to be appointed as part-time judges, both to avoid delays in the administration of justice and to demonstrate their capacity for permanent appointment. If there are tenure problems associated with the European convention surrounding those sensible arrangements, then plainly we must consider them.