Supreme Court

– in the House of Lords at 9:05 pm on 8th September 2003.

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Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 9:05 pm, 8th September 2003

rose to ask Her Majesty's Government how their proposals to create a supreme court of the United Kingdom and a judicial appointments commission will secure the independence of the judiciary.

My Lords, the debate enables the House to discuss how the administration of justice may be enhanced in the light of the Government's proposals for reform. Judicial independence is, of course, not the only requirement for a proper system of justice but it is essential to the rule of law. I am grateful to the many eminent and learned noble Lords who have stayed to take part in this debate on a matter of great importance, not only to judges and lawyers but to everyone.

We are fortunate to live in a democratic society governed under the rule of law, but changing social needs require changes to our governing system, including the judiciary. Reforms must not only be well designed, they must also be carefully implemented in a way that nurtures and sustains a judicial process that commands public confidence. It is especially difficult to accomplish this when judicial independence is undermined by senior Ministers, as has happened with the attacks by the Home Secretary on the judiciary, or when proposals are announced hurriedly without any prior discussion with the judges themselves.

The sudden departure of the noble and learned Lord, Lord Irvine of Lairg, from the Government leaves a worryingly unbalanced Cabinet. He was a powerful counterweight to a populist Home Secretary whose defining characteristics include a marked dislike of the judiciary when it curbs the misuse of his public powers. We regretted the stubborn refusal of the noble and learned Lord, Lord Irvine, to recognise the need to make the reforms now proposed, but that does not diminish his achievements as Lord Chancellor, most notably the Human Rights Act.

The departure of the noble and learned Lord, Lord Irvine, leaves behind a Government with no one of his stature, authority and sometimes awkward independence to act as an effective counterweight to the combined weight of the Prime Minister's Office, the Cabinet Office and the Home Office. It is a vacuum that cannot be filled merely by imposing a statutory duty on a Minister to promote judicial independence, a duty that should surely apply to the entire Government. In any event, it is essential for the judges to speak for themselves when it becomes necessary to protect the administration of justice.

What matters more than any formal and unenforceable statutory duty is the culture of mutual confidence, trust and respect between the judiciary and the executive and between each branch of government and the public. However sensible the proposals for institutional reform may be, what matters at least as much are those chosen to make them work. The botched way in which the Government initially mishandled their proposed reforms has undoubtedly undermined public and judicial confidence in the reform proposals. It is therefore welcome news that the noble and learned Lord, Lord Woolf, has decided to continue to serve as Lord Chief Justice of England and Wales to seek to ensure that judicial independence will be secured and that the quality of our judicial system will be preserved and improved.

The consultation papers do not refer to the role of the Attorney-General. To strengthen the rule of law, he should be entitled as of right to attend all meetings of the Cabinet and Cabinet Committees to advise authoritatively on matters of law and legal public policy. The Prime Minister might do well to follow Australia's example and end the convention excluding the Attorney-General from membership of the Cabinet. The Attorney-General is surely the appropriate Minister to be consulted about judicial appointments for England and Wales.

We support the Government's proposals to create a judicial appointments commission; to replace the Law Lords with a supreme court of the entire United Kingdom; to create a more diverse judiciary; and to end government patronage in the appointment of senior counsel. We have campaigned for these reforms for many years, and we welcome the Government's recent conversion. It is surely right that a Cabinet Minister should not appoint judges and sit as a judge in the final court. As the noble and learned Lord, Lord Bingham of Cornhill, said:

"The Law Lords are judges not legislators and do not belong to a House to whose business they can make only a slight contribution".

We shall miss the Law Lords' contribution to our Committee work and to debates, but their role has become increasingly constrained by the need to avoid possible conflicts of interest. Their proper province is surely judicial rather than political. The judges must be consulted about issues of legal public policy, but they should not be legislators.

Moving the supreme court to a suitable home will overcome the acute shortage of space that now prevents the Law Lords having sufficient support staff and the public having proper facilities. The needs of the senior judiciary and the public should no longer be cramped by the shortage of proper accommodation in this building.

It is also surely right that the senior judiciary should be drawn from a more diverse pool of well qualified candidates than at present in terms of gender, ethnic spread and range of experience and practice. By "well qualified" I mean not only intellectually well qualified but well qualified by experience and personality to act independently and impartially.

The quality of independence is well provided by judges drawn from the independent Bar, for the Bar is a profession of self-governing and inner-directed individuals, trained to be robustly independent. But the Bar still lacks diversity and it has no monopoly for providing potential judges with such qualities. Judges and barristers need to recognise that experience of advocacy is not a necessary condition for a good judge. The qualities needed can be well provided on the basis of wider professional experience beyond the Bar, including solicitors, those who have chaired tribunals or who have been distinguished academics and civil servants.

Judicial independence involves the individual independence of a judge, reflected in security of tenure, and the institutional independence of the court over which the judge presides, embodied in the institutional relationships between the executive and legislative branches of government. This does not mean that a judge should be unaccountable, or that there should be no independent informed evaluation of the judge's performance. But it does mean that the institutional architecture must be well designed to appoint judges of proven experience, ability and independence, and to promote the culture of mutual confidence, trust and respect to which I have referred.

I share the concern of the noble and learned Lord, Lord Woolf, that the proposed judicial appointments commission might be unduly influenced by politicians. As he has said:

"If the Executive can influence who is on the appointments commission and who the commission appoints that is interfering with the judiciary".

It may be desirable, for reasons of political legitimacy and parliamentary accountability, for a parliamentary Select Committee to be involved in some way and for the Prime Minister to recommend to the Sovereign appointments to the senior judiciary, but this must not mean that Ministers should be able to influence the process other than by accepting or rejecting the proposals of a genuinely independent commission. Ministers' discretionary powers should be strictly confined to ratification or rejection of nominations. We certainly would oppose politically partisan and oppressive confirmation proceedings of the kind operated in the United States.

An independent judicial appointments commission should be responsible for making direct appointments at junior level and making recommendations at the more senior level.

The way in which members of the commission are appointed is crucial. The commission need not be chaired by a judge and it must not be dominated by judges since that would lead to a form of judicial corporatism, but it needs to include a significant proportion of senior judges, and to consult the judiciary in its work. It must also be seen to be manifestly independent, and the criteria of procedures for appointment must be well designed and transparent.

I would strongly oppose the suggestion in the consultation paper that the recommending body for appointing commission members should be chaired by the permanent secretary of the Department for Constitutional Affairs rather than someone wholly independent of the Government. The issue of budgetary and staffing control is important. In my view, the Supreme Court of the United Kingdom, like the High Court of Australia and the American federal judiciary, should control its own budget and be responsible for court staffing and services. There is a strong case for that to be done more generally. That is a controversial issue not explored in the consultation paper, but first raised many years ago by the noble and learned Lord, Lord Browne-Wilkinson.

I look forward to the contributions to be made in the debate and to the Minister's reply.

Photo of Lord Borrie Lord Borrie Labour 9:15 pm, 8th September 2003

My Lords, I confine myself to three points. The first is that the case for changing our system of judicial appointments was much stronger in the early part of the last century than it is now. Lord Chancellor Halsbury, who served in that office for a total of 16 years, made some disgraceful appointments, particularly MPs of doubtful quality, to be judges. Then there was the apparent convention in the early part of the last century that, when the office of Lord Chief Justice fell vacant, the current Attorney-General should be entitled to succeed. In 1922, the former Attorney-General Gordon Hewart was appointed Lord Chief Justice. He was to remain in that post for 18 years and was described by the reputable legal historian Professor Heuston as,

"perhaps the worst Lord Chief Justice of England since the 17th century".

Political appointments were common in England over a long period, and it is to the credit of more recent Lord Chancellors, including the last two—the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg—that their appointments were impeccable and based solely on merit and high quality.

My second point is that there remains a case today for change along the lines that the Government have proposed. The present system, in which the whole process of appointment is in the hands of a government Minister, has been abused in the past, is anomalous, and is increasingly inappropriate when judges have to adjudicate more and more on the lawfulness of the actions of the executive. Appointment by, or on the recommendation—perhaps depending on the grade of judge—of an independent, well-balanced judicial appointments commission of the kind proposed, with the commission itself appointed by patently independent persons, is surely the right way forward.

The noble Lord, Lord Lester of Herne Hill, with whose remarks I largely agreed in their detail, is surely right to ask how that system will secure the independence of the judiciary. To my mind, appointment to the judiciary by, or on the recommendation of, such a commission, combined with a continuation of the very substantial security of tenure that High Court judges and, to a lesser extent, circuit judges enjoy, will be the key factors in ensuring judicial independence.

My third point is that I welcome the Government's decision and desire to open up the possibility of appointment to candidates from a wider range of social background. However, the reassurance in paragraph 28 of the White Paper that the fundamental principle must be selection on merit is absolutely vital. At the moment, we have a situation in which about half the numbers of young people who become barristers or solicitors are women. Quite a reasonable proportion of minority ethnic groups has been joining the legal profession but, unfortunately, too many women and too many from those groups fall by the wayside before they have acquired the experience needed for appointment to the Bench.

I feel sure that both the professions could do a great deal more to ensure that work arrangements are more flexible and family friendly, so that there will be a wider and diverse pool from which judges of the future can be selected. I am not sure that I fully understand the rather complex paragraphs 93 to 97 of the White Paper, which deal with how diversity can be achieved. My route, which I have suggested depends a great deal on the profession, will result in a more diverse judiciary than the appointment of younger people with limited experience of the law and of life, which seems to be suggested by the Government.

Photo of Lord Alexander of Weedon Lord Alexander of Weedon Conservative 9:20 pm, 8th September 2003

My Lords, time is short. So I will say nothing by way of amplification and the reasons of Justice, the all-party law reform group which I chair, for believing that the time has come to create a supreme court of the United Kingdom separate from the House of Lords. Our reasons were in the evidence which several of us here, supported notably too by the noble and learned Lord, Lord Scarman, gave to the Royal Commission on House of Lords Reform three years ago.

I want to focus essentially on the critical issue which the noble Lord, Lord Lester, highlighted, of the independence of the judiciary. I find myself in a quandary here. For 30 years, Justice has argued for an independent judicial advisory committee. Now—this is welcome—the Government say in their consultation paper:

"The appointments system must be, and must be seen to be, independent of government. It must be transparent. It must be accountable. And also it must inspire public confidence".

Amen to that. However, to this end I have two suggestions to the Government. First, like the noble Lord, Lord Lester, I do not think it right that a civil servant, however eminent, should chair the small group which makes recommendations for appointment to the commission. I think that it should be better if a judge chaired that group, or at any rate someone else of stature wholly independent of government.

Secondly, and more importantly, I regard it as going fundamentally against the aim of independence to transfer the responsibility of the ultimate appointment from a Lord Chancellor who is by tradition a senior lawyer, acting independently of party, to a Secretary of State for Constitutional Affairs who may not be a lawyer, who may be ranked as the lowest member of the Cabinet, who may have further ambitions and see the role as a ministerial stepping stone, and who may not regard the separation of powers and the integrity of the judiciary as critical to a healthy democracy. I believe that there should be an advisory committee, but advisory to a Lord Chancellor who has the detachment and avoids putting the appointments near the cockpit of party politics.

So I would like to see the post of Lord Chancellor retained, without his being a Minister, responsible for the most important appointments and accountable to this House and to the House of Commons Select Committee on the Lord Chancellor's Department. In this way the aim of securing independence, quality and accountability and appropriate diversity would continue to be achieved.

I would not find a trade-off acceptable between the present arrangements and an independent commission which ultimately led to appointments being made by a very political Minister. We must remember that this is different from any other department of state. All other departments of state are ultimately accountable to the Government. The law is separate. It is a separate branch of the constitution, accountable to the people. I believe that that tradition should be preserved, and the mechanism of adapting the Lord Chancellor's role is a simple one. I have written to the current Lord Chancellor and Secretary of State for Constitutional Affairs about it. I know that the Minister has seen the letter. I would urge that the Government give it the strongest consideration—in which case I would rejoice to see an independent appointments commission.

Photo of Earl Russell Earl Russell Liberal Democrat 9:24 pm, 8th September 2003

My Lords, 10 years ago in an Unstarred Question Nancy Seear remarked, "If my party should abandon the independence of the judiciary, I would promptly abandon my party". At the time of speaking she had been a member of the party for 60 years. It made the mind boggle. But if she had done so, she would have gone out for the principle for which she came in. She joined the party in the week in which Hitler dissolved the Reichstag and took the power to legislate by decree. So the principle that the law should not be under the control of the executive is constant.

But when we think about a great philosophical principle, I think we miss the sheer raw emotion that there is usually in a confrontation about judicial independence. I was looking this afternoon at Shakespeare's unfortunately apocryphal description of the alleged confrontation between the newly minted King Henry V and the Lord Chief Justice. The raw hurt of the executive comes over from that:

"How might a prince of my great hopes forget

So great indignities you laid upon me?

What! rate, rebuke, and roughly send to prison

The immediate heir of England! Was this easy?

May this be wash'd in Lethe, and forgotten?"

That scene shows a need for courage on one side and magnanimity on the other which is rarely met outside fiction. It is a lot more difficult in the real world. So we need some sort of handrail, a banister, for people to clutch hold of because we have been reminded recently that, when in disgrace with fortune in men's eyes, one is intensely lonely. There must be someone to whom one can turn. Clearly it cannot be a traditional Lord Chancellor. I agree with my noble friend Lord Lester that we cannot go back. But equally clearly it cannot be someone who is simply an ordinary political Minister of the Crown. I think that there are a lot of places we can turn.

One of the things we need to think about in all this is the position of Parliament. People constantly remark—as I believe the noble Lord, Lord Borrie, did tonight—that judges are becoming involved in more and more issues of control of the executive. That, frankly, is because we are failing to do it ourselves. The place where there ought to be a real rousing reception to any attempt to interfere with the independence of a judge is Parliament. It is in Parliament that failure is happening.

I make a few small points. I do not think that all the members of the judicial appointments commission should be Crown appointments. The legal profession has many people capable of doing that sort of thing and their talent should be used. I hope that the responsibility for the care of our public records will remain in judicial hands. I am interested in the remarks of my noble friend Lord Lester about the Attorney-General which I think have potential. But he cannot do it on his own. In the end this responsibility must fall on us, but are we up to it, and have we the bottle to take it? I am afraid that I have my doubts, but we must try.

Photo of Lord Ackner Lord Ackner Crossbench 9:28 pm, 8th September 2003

My Lords, four minutes provide no time for introductory averments. I take but one point—a preliminary point. Has the Secretary of State for Constitutional Affairs, or any other Minister, sufficient stature to ensure the continued independence of the judiciary?

Much reliance was placed on the support of the noble and learned Lord, Lord Bingham of Cornhill, on the need for a supreme court quite independent from the House of Lords. Giving evidence as Lord Chief Justice on 13th May 1999 to the Royal Commission, he said:

"We have no doubt that this dual role [that of the Lord Chancellor as head of the judiciary and as Cabinet Minister responsible for the administration of justice] has proved invaluable in maintaining the independence of the judiciary in England and Wales and we have considerable anxiety that any other arrangements would result, in time, in the encroachment of the Executive Government into the proper sphere of judicial independence essential in a democratic society".

I interpose there to say that that encroachment has already happened. See, for example, the sentencing provisions of the Criminal Justice Bill, supported by the noble and learned Lord, Lord Falconer, when a Minister in the Home Office and now no doubt in his dual capacity. Those provisions will of course be debated by your Lordships next month.

Lord Hailsham, a pre-eminent Lord Chancellor of post-war years, in a lecture given in 1989 observed that the Lord Chancellor's essential function was being,

"in the business of defending and preserving the independence and the integrity of the judiciary. If he does it well, then he is a good Lord Chancellor whatever his other defects. If he does it ill, whatever his other qualities, he is not".

Noble Lords may say that everyone supports judicial independence. It is, after all, the judges and the judges alone who stand between the power of the state and the freedom of the individual under the law, so what is all the fuss about? But does everyone support judicial independence? That very question was answered by Lord Hailsham in the selfsame lecture in these terms:

"Certainly not the public or the back-benchers in the House of Commons, who constantly revile, frequently from inconsistent stand points, individual judges on particular decisions, or what they imagine to be judicial qualities, and daily demand that individual judges be directed or rebuked (presumably by the Executive Government) to move in this direction or that or even that they should be removed from office. Certainly not"— this part I emphasise—

"the Opposition, whatever party happens to be on the Speaker's left. Certainly not Party conferences of any hue. And least of all, I assure you, individual Members of the Cabinet whose Departmental interests from time to time basically conflict, not only with the view of the judiciary, where they are entitled to differ, but in the provision of the means necessary to enable the courts to discharge their functions".

It has not so far been suggested that the chief or essential function of the Secretary of State is to preserve or defend the judiciary. Until that is stipulated for in statute, the answer to the preliminary question that I have raised must certainly be no.

Photo of Lord Brightman Lord Brightman Crossbench 9:33 pm, 8th September 2003

My Lords, the Question before your Lordships relates not only to a judicial appointments commission, but also to the creation of a supreme court of the United Kingdom. That appears to me inevitably to raise a very important issue: whether the time has come to hive off the judicial functions of this House, and presumably bring to an end the convention of making Law Lords ex officio life Members of this House. I declare an interest as a long-retired Law Lord.

There are two preliminary questions to be asked. The first is whether the integrity of the judiciary is compromised by the presence of Law Lords on these Benches. The second is, if not, whether a sufficient contribution is made by active and retired Law Lords to justify their being accepted as ex officio Members of this House. I have nothing to say on the first question, except that I should be horrified if my own integrity as a judge had been at any time at risk because I joined in the legislative and other non-judicial work of your Lordships.

On the second question, the contribution made by Law Lords to the non-judicial work of this House, I suggest that there are four pieces of information which it would be useful to have if they can be extracted with the aid of a computer. First, how many amendments to a Bill of a substantial nature have been tabled by Law Lords over, say, the past 10 years and accepted by the Government without a Division? Secondly, how many drafting amendments have been tabled by Law Lords over a similar period and accepted without a Division? Thirdly, how many places on committees have been filled by Law Lords over a similar period? Fourthly, how many committees have been chaired by Law Lords over a similar period?

I have endeavoured to do a little research on my own. There is now a useful publication issued by the Information Office, rather nicely entitled Who does what in The Lords. This tells me that as at 5th March this year, 12 places on committees were occupied by Law Lords. I have also ascertained, by consulting DOD, that one particular Law Lord in his time acted as chairman of no fewer than nine Select Committees. I have no doubt that research will throw up similar examples.

If the information I have outlined is obtainable, I think that we should have a fair idea of whether the presence of active and retired Law Lords in this House is justified. Government would be able to see what price would have to be paid for dismissing Law Lords as ex officio Members of this House and decide whether that price is acceptable. If the present association of the legislature and judiciary is to be maintained, as I sincerely hope it will be, I think that it must be proved not only that judicial integrity is not endangered, but also that a worthwhile contribution is made by the Law Lords to justify their having the privilege of sitting here ex officio.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 9:37 pm, 8th September 2003

My Lords, like the noble Lords, Lord Lester and Lord Alexander, I was one of the lawyers who gave evidence to the Wakeham commission that the time had come to reform the role of the Lord Chancellor. Although the press have suggested that this constitutional reform has come from left field, in legal circles it has generally been accepted for a very long time that the traditional role of the Lord Chancellor had become untenable and that the time had come to create a supreme court.

I was most forcefully struck by the anomaly when the president of the supreme court of Russia came to London to visit our courts and to meet our senior judiciary. As chair of the British Council, I was given the role of accompanying him on that visit. The British Council had been engaged in assisting a programme of law reform in Russia, including the drafting of legislation to underpin the independence of the judiciary from the state.

As chair of the British Council, I went with Justice Lebedev to meet the Lord Chancellor. On the way, he and I had a lively discussion about the importance of an independent judiciary and how crucial it was to a vibrant democracy. We discussed the role that the judges play in a contemporary legal system, protecting the rights of citizens and providing a control function by determining the lawfulness of government actions. He explained how hard it was to persuade the Russian public, after years of political control, that the judges really were independent and that they could be trusted. But he then with a twinkle asked me to explain how our system worked, with our Lord Chancellor wearing three hats. I have to say that I rather wickedly in return suggested that he ask the Lord Chancellor.

When we went in to see the noble and learned Lord, Lord Irvine, there was the giving of a gift of a delightful samovar, which I am sure appears on his gift list in official bulletins. He asked how it came about that the Lord Chancellor could fulfil all those conflicting roles. The noble and learned Lord, Lord Irvine, gave a very convoluted reply which did not help given that it had to be translated. The explanation was all about tradition and Chinese walls, all of which sounded half-baked to a reform-minded Russian, who would be meeting senior judges from Czechoslovakia and other countries that wanted to apply to belong to the Council of Europe, all of whom were seeking to make their judiciary independent.

The time had undoubtedly come for reform. Indeed, many of us had tried to persuade the noble Lord, Lord Irvine, that he should reform himself but our advocacy was not good enough. All that was needed was a decision by him not to sit again as a judge and the creation of an independent judicial appointments commission. Of course, if he had been really reform-minded he could have persuaded this House to appoint its own speaker. If the noble and learned Lord, Lord Irvine, had made those reforms the role of Lord Chancellor could have remained. It is important to have someone in the Cabinet who speaks for justice, for law and for the judges as a crucial counterweight to the purely political considerations that can press upon other Ministers.

I want to echo the concerns of the noble Lord, Lord Alexander, about having a Secretary of State who may not take the long view. The Lord Chancellor's role has always transcended the political. It has a constitutional function. The Lord Chancellor is a guardian of the unwritten constitution; he became the guardian of human rights; and he protects the judges. I am anxious, in changing the role, that we ensure that the function does not become one that is purely political with the risk of neglecting those precious checks on the executive.

Like many others here, I am pleased with the general thrust of these reforms. I think that an appointments commission will help to create a much more diverse judiciary. I think that the creation of a supreme court will be a great moment in our constitutional history. Unlike the noble and learned Lord, Lord Brightman, I do not think that an active judge should participate in the legislature. I think that we benefit from having many retired judges in the House and I hope that that may continue.

My lingering concern is that the empire-building impulses of the Home Office machine and the short-term instincts of some politicians will mean that the long constitutional view will not be taken. A judicial appointments commission should not have any political interference. It should be independent; independent of the Prime Minister and independent of the Secretary of State. I echo what has been said by others about the importance of that independence. When we have all given our voice to the reforms, we did not imagine that it would mean the passing of appointments from the Lord Chancellor to the Prime Minister. I think in our modern world that that is unacceptable. Otherwise, I congratulate the Government on their boldness, but I ask them to consider the importance of our constitutional arrangements.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 9:43 pm, 8th September 2003

My Lords, I congratulate the noble Lord, Lord Lester of Herne Hill, on raising this important question this evening.

I have a simple point to make. We need far greater clarity as to what it is that we are discussing. The consultation papers make it clear that the most substantial argument advanced by the Government in support of their proposals is that of ensuring the independence of the judiciary. I quote from the foreword written by the noble and learned Lord, Lord Falconer of Thoroton, to the consultation paper entitled Constitutional reform: A Supreme Court for the United Kingdom, in which he refers to calls for the creation of a Supreme Court which separates the highest court of appeal from the second House of Parliament. He states:

"The Government believes that in so doing they will reflect and enhance the independence of the judiciary from both the legislature and the executive".

In the very next paragraph the noble and learned Lord declares:

"The decision does not imply any dissatisfaction with the performance of the House of Lords as the highest Court of Law. On the contrary its judges have conducted themselves with the utmost integrity and independence".

So we have Law Lords who are independent but who have to be removed from the second Chamber in order to demonstrate their independence. Why? The argument is one of perception. I can see the argument involved, but there is a confusion as to the very concept of independence. The first reference by the noble and learned Lord, Lord Falconer, is to independence in the sense of physical detachment. The second reference is to the capacity to exercise a judgment free of influence by others; in this case, other Peers and members of the executive.

If the existing Law Lords can exercise judgment without being swayed by others, what is the point of removing them from the second Chamber? Separation will not, as the Government claim, enhance the capacity of judges to exercise judgments independent of others; it can only do that if there is some lack of detached judgment, and the noble and learned Lord clearly does not believe that there is. We are not in fact talking about independence but how people see independence. If there is a perception that does not accord with the reality—a misperception conceded in effect by the noble and learned Lord—one has two options. One can accept the misperception and undertake change in order to ensure that there is a better fit between practice and perception, or one can seek to correct the misperception.

The Government are pursuing the first option. I think they have to make the case for doing so. They have asserted the case—and there are external pressures—but, given that there is an alternative, they have to argue it more convincingly. The same applies to all those who argue the case for a supreme court.

Given that the focus of the Government is on perceptions, it is all the more surprising that they argue for the involvement of Ministers in the future appointment of judges. The case is based on existing practice and constitutional principles. To date, much has rested on the Lord Chancellor, who because of his judicial capacity is a somewhat detached member of the Government. In future—as my noble friend Lord Alexander of Weedon has said—the Secretary of State for Constitutional Affairs, like the Prime Minister, need not be a lawyer or anyone with any great knowledge of the judicial process. How, then, does one avoid the perception of possible political interference?

The Government's proposals enter far more complex territory than is acknowledged in the consultation papers, perhaps reflecting the haste in which the proposals were generated. The consultation paper also raises a major point of principle affecting your Lordships' House in proposing, in the name of independence, that existing Law Lords—Members of this House—be barred from membership of the House for the duration of their tenure of the Supreme Court. We need to consider that novel constitutional proposal separately and urgently.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 9:47 pm, 8th September 2003

My Lords, I am more than glad to follow the noble Lord, Lord Norton, because I find myself in complete agreement with every single word which he has said.

Two main themes run through these papers. The first is the Government's belief that the presence of the Law Lords as Members of this House in some way breaches the so-called separation of powers. Secondly, there is the emphasis placed by the Government—and rightly placed—on judicial independence. Thus, in the supreme court paper it is said that the removal of the Law Lords from the House of Lords would "emphasise and enhance" their independence. In the judicial appointments paper it is said that the new commission will "bolster and guarantee" judicial independence.

The present debate is concerned entirely with the second of those themes—the independence theme. In passing, I should like to say that the first theme is based in my opinion on a complete misunderstanding of the separation of powers as it applies in the context of an unwritten constitution. But that is a debate for another day.

I turn to judicial independence. The supreme court paper applies only of course to the 12 existing Law Lords and their successors. It does not affect the rest of the higher judiciary in any way. Yet it is accepted in the paper, and accepted so far as I know everywhere, that the Law Lords have conducted themselves—and here is the quotation to which the noble Lord, Lord Norton, drew attention,

"with the utmost integrity and independence", and that they are,

"wisely and rightly admired, both nationally and internationally".

That being so, I am at a loss to understand what the Law Lords have to gain in the way of independence—this is the very point of the noble Lord, Lord Norton—by being moved at great and at continuing expense to some new premises.

I accept that it may look untidy for the highest court of the land to sit as an appellate committee in this House. The reason, of course, lies far back in our history. I accept also that appearances matter, but appearances are not everything—not even in this Administration. To me, it does not make sense—indeed, it is the merest pedantry—to argue that the Law Lords should be moved to some other building. That would deprive this House and the country of the views of the Lord Chief Justice, and of judges of the eminence of the noble and learned Lords, Lord Wilberforce and Lord Scarman, and many others whom I could mention, just because it would make the Law Lords seem—I emphasise the word "seem"—to be more independent.

I turn to the other paper, where it is said in paragraph 22 that the selection of the judges by the Lord Chancellor as a member of the Cabinet is a potential source of patronage over the judiciary and is quite out of place in a modern democratic society. Those are fine words, but let us read on a few paragraphs. What do the Government suggest should be put in the Lord Chancellor's place? Who, in the Government's view, is to have the final say on making recommendations for judicial appointments? Who is to determine—sinister words—overall policy in relation to judicial appointments? None other than the Secretary of State—another member of the Government.

It is said that that is necessary because of the constitutional convention that the Queen always acts on the advice of Ministers. Quite right, but so she does when she acts on the advice of her Lord Chancellor. The Government cannot have it both ways. If it is a constitutional affront for the Lord Chancellor to select the judges, so also it is a constitutional affront for the Secretary of State to select the judges. Here I agree entirely with what was said by the noble Lord, Lord Alexander, and the noble Baroness. Indeed, it might be said to be a greater affront because whereas the Lord Chancellor—and not least the noble and learned Lord, Lord Irvine of Lairg—by virtue of his higher office and experience of the law has traditionally protected the independence of judges, the Secretary of State might be—well—anybody.

As for the new judicial appointments commission, it is pure window-dressing since the Secretary of State has the final say and can reject the recommendations if he does not like them. In any event, we already have a Commission for Judicial Appointments, as recommended by Sir Leonard Peach. Why do we need two? These papers are full of holes, and the only, and most charitable, explanation is that given by the noble Lord, Lord Norton—they were prepared in too much of a hurry.

Photo of Lord Brightman Lord Brightman Crossbench

My Lords, before the noble and learned Lord sits down, I may have misunderstood what he was saying. The Question, as tabled, relates to two proposals—in the plural—to create a supreme court of the United Kingdom and a judicial appointments commission. Therefore, if there was any thought among your Lordships that I was speaking out of turn when I referred to the dismissal of the Law Lords from the House of Lords, I respectfully suggest to your Lordships that I was absolutely within the terms of the Question.

Photo of Lord Brennan Lord Brennan Labour 9:53 pm, 8th September 2003

My Lords, in 1867 Bagehot declared that the supreme court of English people ought to be a great conspicuous tribunal, it ought to bring our law into unity and it ought not to be hidden beneath the robes of a legislative assembly. I agree with those words. The time has come at the beginning of this century for a supreme court in this country. I believe we shall debate the reasons for that at length when the necessary legislation comes before us, but I highlight two factors.

The growth of public law, European law and human rights law creates a role for a supreme court much more in the public eye and much more sensitive than it has been in times past. A court of that kind should be seen to be independent.

Secondly, the fact is—I regret to have to say this; it is a personal view—in times of a strong government and a weak Parliament that has not effective committee control of the executive, a supreme court has a special symbolic role in the community as the defender of citizens.

To preserve that role, Bagehot's words embrace three concepts. The first is independence. I agree entirely with the words of the noble Lord, Lord Alexander. There should be a Minister with the specific responsibility to preserve the independence of the judiciary, perhaps even written into the statute that creates the supreme court. With that responsibility, it is difficult to see how even the most base of politicians could determine to appoint people who lacked merit. The statutory responsibility should prevent it.

So, first, there must be independence and a Minister to protect the judiciary from attack where necessary. Secondly, the court must have stature. What I am about to say may be controversial. It should consist of 12, 15 or whatever number best represents England, Wales, Scotland and Northern Ireland as constituent parts of the nation. It should be divided into panels; I am not suggesting 12 to 15 as the sitting panel.

The age should be kept to the present limit. If my noble friends on this side of the House and noble Lords on the Cross Benches will forgive me, I am entirely against the supreme court of our nation being staffed by retired judges—not because I do not respect their abilities, but I think that it is a simple technique of saving money by the Treasury. I cannot imagine any other reason for suggesting age 80 as the age to sit.

Thirdly, the composition must be correct—not prescribed but at least sought. Is there a public lawyer by experience on the present panel? Is there an expert in European law? Is there anybody with profound understanding of the criminal law? The composition of the court should reflect those specialities.

Lastly, the judges should not be used to conduct major public inquiries. They are servants of the nation in the supreme court. There must be separation of powers. Judges are not legislators. That simple constitutional proposition cannot be gainsaid. We can have the advantage of the Lord Chief Justice and others making public speeches as required. Supreme court judges should be given peerages and attend this House after their retirement to contribute to it. But, for the community in which we live, the time has come for a supreme court to be seen to represent the legal interests of the people in the nation, to provide the protective balance between them and Parliament, where necessary, and certainly between them and the executive.

Photo of Lord Taylor of Warwick Lord Taylor of Warwick Conservative 9:58 pm, 8th September 2003

My Lords, in 1972 the popular Jamaican singer Johnny Nash had a hit record with a song called, "There Are More Questions Than Answers". I am not aware that, when he wrote the song, he had in mind the creation of a supreme court and a judicial appointments commission. But the song's title fairly sums up how I feel about the Government's consultation papers, which contain no fewer than 72 questions.

Noble Lords have mentioned some very pertinent questions, which I shall not repeat now. Because of time limits, I will focus on a particular aspect of the proposals: the desire to make the judiciary more diverse. But the question is how diversity will be achieved. I fully support the comments made by the noble Lords, Lord Lester of Herne Hill and Lord Borrie.

Sadly, a woman has never been appointed to our final Court of Appeal. There has never been a black or ethnic minority judge appointed to the High Court in England and Wales. We are familiar with the expression "glass ceiling" when describing the obstacles often faced by professional women. The phrase "concrete ceiling" is one that is commonly used by the black community to describe its barriers to progress. Clearly, the judiciary must become more diverse in order to carry the confidence of the wider community.

The business sector in Britain has been enriched by diversity, so it is not inevitable that a more diverse judiciary would result in lower standards. It will, however, if tokenism is used to enforce diversity. The answer is to create more equality of opportunity. The legal profession itself must, for example, look at whether the terms and conditions of judicial office are "family friendly" and whether it allows sufficiently for the needs of lawyers who need a career break after having children. Black and minority ethnic law students with the same qualifications as their white counterparts still find it more difficult to obtain pupilages and articles.

I support the rationale behind these proposals, but the devil is in the detail. There are more questions than answers. Johnny Nash ends his hit song with the line, "The more I find out, the less I know". I hope that is not an omen for these reforms.

The public needs a modern legal system that builds on its current independence and quality. These proposals bring many questions. I just hope they provide the right answers.

Photo of Lord Hobhouse of Woodborough Lord Hobhouse of Woodborough Chair, Consolidation etc. Bills (Joint Committee) 10:01 pm, 8th September 2003

My Lords, I am most grateful for the opportunity and justification to make some very brief observations upon the important topic of independence. At the outset, I would like to say that I do not wish to detract from anything that the noble Lord, Lord Brennan, has just said, with most of which I agreed. The views that I will express are my own. I do not speak on behalf of my colleagues.

The remarkable feature of both these papers and the ministerial statements which accompanied them is that they unstintingly acknowledge the merits and success of the current systems, the role of the Lord Chancellor and the dedicated staff of the Lord Chancellor's Department. The proposals for change are sought to be justified on doctrinal grounds, which I suggest are fundamentally flawed.

For the supreme court, the Minister tells us that:

"The time has come to take the final court of appeal out of the Legislature", and that,

"the time has come to establish a new court as a body separate from Parliament."

As regards judicial appointments, we are told that it is no longer acceptable that they be solely in the hands of "a Government Minister"—an expression repetitively used whenever it is wished to refer to the office of Lord Chancellor—and the paper calls for a judiciary which is more "reflective" or "representative" of society. This is an aspiration which would run directly counter to the current admirable and non-discriminatory, merit-based criteria set out at Paragraphs 7 to 9 of the paper.

Neither the separation of powers, as opposed to the principle of judicial independence, nor the concept of a "representative" judiciary, are part of our constitution nor have they ever been. Nor is it right to describe the office of Lord Chancellor merely as that of a "Government Minister". The theory of the separation of powers was a primarily French invention. It has never been part of the British constitution or the "Westminster model". If it were, the executive, including the Prime Minister, would have to be removed from the House of Commons. In contrast, the principle of judicial independence from the executive stems from the Glorious Revolution. The theory of the separation of powers should, at most, be seen as one possible means to that end.

The independence from the executive of the Appellate Committee is, in fact, enhanced by its being sheltered under the wing of your Lordships' House. Neither the serving Law Lords nor, I suspect, your Lordships feel threatened in any way by their presence within these walls. There are strong practical arguments in favour of our moving out and having our own home, but the paper does not face up to the implications of providing complete and real independence for the new court. There will be considerable additional costs initially and year-on-year. Your Lordships should be vigilant to see that, when the actual proposals are published, they do not put the truly independent operation of the new court in jeopardy or undermine its standing.

Finally and briefly, I turn to the appointment of judges. In the long run, the risks here are potentially more serious. I will simplify. The key to success at present has been the office of Lord Chancellor and the independence and expertise of the Lord Chancellor's Department, separate from the rest of Whitehall. The Lord Chancellor is not just a Minister; he sits in the House of Lords. He has nowadays no further political ambitions. He has taken the judicial oath and accepted the role as head of an independent judiciary. It is not necessary or appropriate that he ever sit as a judge, but he understands well that judicial appointments are part of his judicial functions. The criteria that he has published are wholly admirable. Who better to be the defender of judicial independence than the Lord Chancellor? The present proposals include abolishing the independent post and department, introducing contradictory criteria of social engineering and even suggest that some Minister should be accountable to the House of Commons for individual appointments.

I conclude by saying that I have no personal interest in the subject matter of the debate, as I am not looking for further judicial preferment and expect to retire long before any supreme court comes into existence.

Photo of Lord Cooke of Thorndon Lord Cooke of Thorndon Crossbench 10:07 pm, 8th September 2003

My Lords, I quote:

"Our judiciary enjoy the highest international standing. The Government wants to ensure that the way in which they are selected is as well regarded".

So runs the consultation paper. There is an implicit dichotomy in that. The suggestion appears to be that the rest of the world admires the quality, integrity and independence of the judges of England and Wales, but questions the administrative arrangements that produced such a judiciary. I do not believe that the world as a whole draws any such distinction. It is the product, not the process, that matters in the world's eyes.

That the judiciary here is, at the present day, independent of political influence is axiomatic. In the interests of time, I will not labour the point, beyond mentioning one current example. When the government of the day recognised that a truly impartial inquiry was required into a tragedy of intense public concern, to whom did they naturally turn? A Law Lord.

A change to a judicial appointments commission will add nothing to the practical independence of the judiciary. On the contrary, it may result in quotas, trade-offs and uninspired appointments. It is linked with an unconsulted proposal to destroy the office of Lord Chancellor; yet I believe that the rest of the world sees a non-Gilbertian truth in Gilbert's line:

"And I, my Lords, embody the Law".

Certainly, in my years as a barrister and judge in New Zealand, we deeply appreciated the visits of such Lord Chancellors as Jowitt, Kilmuir, Gardiner, Hailsham, Mackay. We envied, and realised how significant for the rule of law it was that they had the ability to speak for the judiciary in Cabinet. Diversity in judicial appointments is good, but it increases naturally. It will not best come as part of a tearing up of a unique history.

A convention had been developing that the Lord Chancellor would no longer sit as a judge. Nothing more was required to modernise the United Kingdom system without sacrificing its distinctive merits. To remove the Law Lords from the House would add not a whit to their independence, while somewhat downgrading them and sacrificing the reciprocal advantages of their ability to take an appropriate part in the work of this place. Thus, two current and three former Lords of Appeal have contributed to the debate. Their right to contribute should not be thrown away.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat 10:11 pm, 8th September 2003

My Lords, I am grateful to my noble friend Lord Lester of Herne Hill for introducing the debate. Although the time for individual speeches has been short, the quality of the speeches has made this something of an advertisement for short time limits. We are discussing two changes of immense constitutional importance proposed by the Government, which have been advocated by these Benches for years. Naturally, we support them in principle. The first change is the creation of a new supreme court and the transfer to it of the present jurisdiction and membership of the Appellate Committee of your Lordships' House.

Outside your Lordships' House I believe that this change will be relatively non-controversial. It will not alter the nature of the work done by the highest court in the United Kingdom, nor will it alter the identity of the people who do it. It is nearly 200 years since it was finally accepted that Members of your Lordships' House could not exercise judicial functions unless they were also, or had been, holders of high judicial office. We are now moving towards a convention that serving Lords of Appeal in Ordinary do not speak in debates in your Lordships' House, with limited exceptions: for example, the role of the Law Lord—in this case, the noble and learned Lord, Lord Scott of Foscote—who chairs Sub-Committee E of the European Union Committee, in introducing debates on reports of that sub-committee.

The creation of a new supreme court separate from your Lordships' House would therefore do no more than put an end to what is now an historic anomaly. In addition, it would give the Supreme Court the opportunity for the proper housing and facilities which it has obviously required for many years. I accept that there is a strong case for having as a Member of your Lordships' House someone who can speak for the judiciary. The noble and learned Lord, Lord Woolf, has done that powerfully on two recent occasions, but it does not mean that serving members of the Supreme Court should also be simultaneously Members of your Lordships' House. That role is better played by the Lord Chief Justice and the holders of the corresponding offices in Scotland and Northern Ireland.

The more controversial issue has been the transfer of power to recommend judges for appointment from the Lord Chancellor to the proposed judicial appointments commission. We are, of course, fortunate in our present judiciary. Appointments made by recent Lord Chancellors have been of very high quality. As the noble Lord, Lord Borrie, pointed out, in the past political support for the government of the day has been a good way of getting on the Bench. Indeed, Lord Halsbury was explicit about it. If the office is retained, we cannot guarantee that future Lord Chancellors would always be as impartial as recent ones have been. This is particularly so given the increasing constitutional role of the judiciary through the development of judicial review and through the Human Rights Act. The temptation to appoint judges who are not potential troublemakers might become irresistible to some future Lord Chancellor.

There are criticisms of the way in which the process operates now. While undoubtedly it selects judges of real merit, it may also overlook other people of at least equal merit. So we welcome the transfer of the power to make those appointments to the judicial appointments commission. If the Government, through the Prime Minister or the Secretary of State for Constitutional Affairs, retains any role in the appointment of the higher judiciary—we think there are strong arguments for why they should not do so—that role should be limited to approving or rejecting a single name proposed by the judicial appointments commission and, indeed, giving reasons to the commission in case of rejection of that name.

When legislation is introduced to give effect to the Government's proposals, as we assume will happen in the next Session of Parliament, it will need to be watched very carefully to ensure that the independence of the judiciary is not only preserved but strengthened. That will mean that the high reputation of British justice will be maintained for the future.

Photo of Lord Kingsland Lord Kingsland Conservative 10:16 pm, 8th September 2003

My Lords, I should like to speculate briefly on the motives of the Government in introducing these proposals.

Their introduction has been rather sudden. Indeed, throughout his time as Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, repeatedly opposed either the creation of an independent supreme court or the establishment of a judicial appointments commission.

Can it be that overnight there is evidence that judges have become corrupt, or susceptible to political interference, or have in some way fallen below the intellectual standard that we rightly expect of them? It seems not, because in his speech to your Lordships' House on 14th July, the noble and learned Lord the Lord Chancellor said that:

"We currently have judges of complete independence, probity, and very high ability. They are admired the world over".—[Official Report, 14/7/03; col. 630.]

Could it be that the inspired and sustained campaign fought over many years by the noble Lord, Lord Lester, has led to the Damascene conversion of the Government to these two new policy proposals, some 50 years after the Government ratified the European Convention on Human Rights? I have the highest admiration for the quality of the advocacy of the noble Lord, Lord Lester, but I have to say that I think not.

I want to suggest that the real reason why the Government want to make these changes is because the decisions made by the judiciary in the realm of public law are increasingly inconvenient to them. The judges are becoming a nuisance, and especially an impediment to the populist programme of the Home Office. Yet all the judges are doing is implementing a law which the Government introduced in 1998; that is, the Human Rights Act.

As—dare I say—many of us pointed out during the passage of that Bill, there was a real danger that the consequences of it would be the political over-exposure of the judges. So I suggest that the motive that lies behind these changes is to weaken the judges' role in our constitutional arrangements in other respects: by removing the Lord Chancellor from the Cabinet and the Lords of Appeal in Ordinary from the legislature.

Your Lordships' House suffers in a further way because, by removing the Lord Chancellor from the Cabinet, your Lordships' representation in the Cabinet is reduced from two to one.

Moreover, the Minister who will succeed the noble and learned Lord the Lord Chancellor in his judicial responsibilities will be a Secretary of State sitting in another place who, more likely than not, will not be a lawyer. So what price the separation of powers if that Minister has the final word over judicial appointments?

We are told by the Government that they seek a more representative judiciary. I do hope that what the more representative judiciary will represent will not be the political mood of the day.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 10:20 pm, 8th September 2003

My Lords, I thank the noble Lord, Lord Lester, for introducing the debate. This is an issue of great importance to our constitution and to the House and it is good that we should have an early opportunity to debate it even before consultations are completed and before any draft legislation is brought before the House. I also thank all noble and noble and learned Lords who have spoken on these issues of considerable importance.

At the risk of slightly over-emphasising a dichotomy, it seems to me that the debate was split between those who believe that changes are necessary in terms of both the supreme court and the judicial appointments commission but that the proposals are not yet quite perfect, and those who argued for the status quo. I shall not put everyone into exact categories.

The noble Lord, Lord Lester, started by signalling that he supported the main element of the proposals. He spoke also, as did many others, about the importance of diversity as an element of these proposals. I thank him for that.

He started an argumentation, which was picked up by a number of other speakers, that there is a worry that the fact that the Lord Chancellor will be replaced by a Secretary of State in itself risked weakening judicial independence in some way. It is an important issue to ventilate and the debate has started that process. My initial response is that we will undoubtedly come back to these matters.

Along with the noble Baroness, Lady Kennedy, and my noble friend Lord Brennan, the noble Lord, Lord Borrie, essentially affirmed the case for change on both counts. While there has been a wonderful historical evolution of our constitution, no one would dream of designing a supreme court as part of the legislature. Why should we therefore continue with such a system when it is quite clear that it involves some risks in terms of JR and ECHR?

More importantly, it does not help to establish the importance and independence of the judiciary. If one were to ask average members of the public what is the supreme court in the land, they would say it was the House of Lords. If you asked them to describe how it operated, they would probably say that most of us were involved in the process in some way. They see us as politicians and they do not hold us in very great respect.

You may say that members of the public are foolish and ignorant to be confused in that way. On the other hand, if we had a supreme court that was quite clearly independent of the legislature, the authority of that court would be enhanced. Its visibility would be apparent and clear and the public would increasingly see it as a bulwark of their freedoms, their rights and their independence. That, of course, is how it has operated, but that clarity, that separation and that independence would be to the public good. I believe that it would be celebrated by the public, who would understand it more clearly.

We will of course lose the experience and contributions of our Law Lord colleagues. I feel that with some sadness. For example, one has seen how powerfully the noble and learned Lord, Lord Scott of Foscote, has led the European scrutiny process. It is a sadness, but it is not a point of principle that would justify its continuation in the future.

Under the current proposals set out in the White Paper, we will rejoice to receive the contribution of the existing members of the supreme court when they have completed their term of office and come back into our Chamber. It may well be that future members of the supreme court who are not appointed as Lords will nevertheless find that they are invited to become independent members of the House. I cannot forecast or foresay that. I do not believe that we will lose the great contributions that former members of the Appellate Committee or the Supreme Court can make, but we will get their contributions only when they are no longer acting as judges and are free to join us as legislators. That must be right in principle even though we will be sorry to see them go.

I thank the noble Lord, Lord Alexander of Weedon, for rejoicing at an independent appointments commission. However, he made very clear his concern that if the Lord Chancellor went, we would be weakened, as he is the voice in government for the independence of the judiciary. That is an important issue, which has been raised by many speakers today.

My noble and learned friend Lord Falconer is the Lord Chancellor at present; I believe he will be a distinguished Lord Chancellor and a distinguished Secretary of State when he is no longer Lord Chancellor. Merely giving a politician—because all Lord Chancellors are political appointments—the title of Lord Chancellor does not, I am afraid, defend the independence of the judiciary. That is self-evidently not automatically the case. Rather, I suggest that what we propose goes considerably further than anything proposed by any government before to preserve the independence of the judiciary. Let me enumerate that briefly.

We propose that the ministerial role in the appointment of judges will be brought to an absolute minimum. We have put three options up for consultation. One, in response to the noble Lord, Lord Norton, and others, is that Ministers should have no involvement whatever. That would require a change to our constitutional conventions, as the Queen normally acts only on receipt of advice from her Ministers. However, it is in the consultation paper as an option, and if people think that is the right way forward, they should signal it clearly in their responses to us. It is an option; it is a perfectly possible and legitimate option, and we would pleased to hear from people who support it.

It is not the option we recommend because we think that the Queen being advised by Ministers, who are thereby accountable to Parliament, can be preserved. The noble Earl, Lord Russell, is absolutely right that accountability to Parliament is one of the elements in defending the independence of the judiciary. Such a mechanism preserves the accountability to Parliament and we therefore think that that option has considerable merit.

If that is the option being considered—and our minds are open to views and opinions—what should be the extent, if any, of ministerial discretion in the circumstances when the commission is making recommendations? Those are very important points of detail and principle, and we think it important to listen carefully to views and opinions on them.

We have given a number of ideas in the paper so far; we very much hope that Members of this House and those outside will give further thoughts on the specifics as well. The devil is in the detail, and getting the detail right could lead to a model that contained accountability to Parliament as well as enshrining strong independence.

Let me go further in terms of the Secretary of State for Constitutional Affairs. There is a very strong argument for giving a statutory responsibility and putting it beyond doubt that the Secretary of State has a responsibility—nay, a duty—to preserve the independence of the judiciary. Nothing would be lost by having such a responsibility and, in fact, the gain would be considerable. They would always have to have that in the forefront of their mind when they were acting. That, in a sense, has been the central thrust of the argumentation. The Lord Chancellor, in the historical embodiment, has had that role. How do we preserve that in the future? Some have said we should keep the Lord Chancellor. I must admit that I am not persuaded by the argument that we need to keep that particular historical figure or role, but I am interested in the argument that we need to entrench the responsibility within government for supporting and upholding the independence of the judiciary, because that is an important part of our constitution.

Let me also signal why I think some of the concerns expressed are misplaced. The Secretary of State for Constitutional Affairs has a responsibility within government for looking across the constitution. He will shortly set out some of his thinking in this respect, and I hope it commands some public interest. He also has the leadership role on human rights, freedom of information and data protection. Much of the legislation emanating from the department is about the rights of minorities in our society. So there is a very strong coalition of interests and responsibilities in the current role of Lord Chancellor—the Secretary of State for Constitutional Affairs in the future—regarding the defence of rights of the independence of the judiciary and of our judicial system. That does not mean to say that our judicial system is perfect and should be preserved in aspic, as it currently is.

A number of noble Lords touched on the importance of recognising that diversity, and the confidence that the public hold in the judiciary, need to be considered as part of the reforms. The noble Lord, Lord Taylor, made that point most strongly, but the noble Earl, Lord Russell, also made mention of those issues. They matter on three grounds. First, if one does not manage to attract more people as candidates to be selected only on merit, one is at risk of wasting talent. That is the classic business case for treating diversity seriously—otherwise, one misses out on talent.

Secondly, there is straightforward human fairness. If one does not treat seriously people who have ability and talent, they are deprived of opportunity.

Thirdly, confidence is a factor. Most of us will remember a time when newscasters on the BBC were only ever white males. That said something about our society. We have moved on from that time; for example, 15 per cent of medical consultants in Britain are from black and ethnic minority backgrounds; 1.2 per cent of judges are.

In the legal profession, there have been a good proportion of women have come in as solicitors and barristers—about a third of each profession. I shall not give the figures for the higher levels of the judiciary. No one is saying is saying that we should move to any form of mad world of political correctness, but it is right that the system is asked to inspect itself and to consider why we have not succeeded in bringing forward into our system the talent that must exist in women or black and ethnic minority lawyers. That is one of the proposals before us as part of the consultation process.

I am out of time, so I shall end by thanking again all who have contributed to the debate. Some very important issues have been raised about how we entrench in the constitution the duty to uphold the independence of the judiciary. However, I have not been changed in my view that there is a need for change, nor do I believe that many Members have argued against the need for change. The issue is how to get that detail right: to uphold the independence of the judiciary while making the judiciary one that the public increasingly respect and see as their defenders, because that respect is not at the level that we would wish at present.

House adjourned at twenty-six minutes before eleven o'clock.