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Mr. William Cash (Stone): The new Secretary of State for Constitutional Affairs is quoted today as saying that he wants to end the Gilbert and Sullivan profusion of roles for the Lord Chancellor. Given the importance of matters that affect the very essence of our system of justice and the future of our constitution, it is to say the least a pity that the proposals of the Prime Minister and the Secretary of State began with a theatrical production that put "Iolanthe" to shame, let alone the ministry of silly walks.
My first question to the Minister is this: why are we not being given a White Paper, and a debate on that White Paper in the House? Secondly, where are the transfer of functions orders? Without those, what is the statutory basis for the Minister's role in the House of Commons, especially as the new Department is the fourth largest spending Department? The lack of any such order raises serious issues of accountability for public expenditure in the House.
On 19 June, the Prime Minister told me that the matter would be dealt with once the position of Lord Chancellor had been abolished. As that can be done only by statute, which may be a year away if it comes into being at all, how will the Government deal with the question of financial accountability to the House in the
meantime? The Prime Minister is behaving more and more like a Stuart monarch. He should recall the fate of those monarchs.Thirdly, the Minister says that we have judges of complete independence, probity and very high ability. He says that that must continue. Will he explain how the current system has failed, and why he thinks that the diversity to which he refers could not have been achieved under the present system? Is diversity another word for political correctness? Bias is not exclusively political, but may result from the whim of fashion or alleged rights. It is of course important for us to have a judiciary drawn from the whole community, but is the Minister saying that diversity is more important than merit?
Fourthly, on the supreme court, who will be responsible for the rules of procedure, including the white book, under the proposed system? The Secretary of State is understood to have said that the new supreme court would not have the power to strike down legislation, but does that mean that the power of the Secretary of State to issue prohibition orders on the Scottish Parliament, in relation to reserved matters, will be repealed, and who will deal with excessive use of powers in devolution matters? How will Scottish appeals be dealt with in the light of the Act of Union 1707?
What is the Secretary of State's reason for excluding members of the supreme court from sitting and voting in the other place? That may have certain attractions, but the idea is not welcomed by many. What will be the relationship between the supreme court and the European Court of Justice in Luxembourg as the Supreme Court in Europe? Will the Minister clarify the role of the Law Lords? Will they attend the other place after retirement? Will the supreme court inhabit Somerset house? I hear that the dome is still available—no doubt the Secretary of State will be able to find his way there. In such circumstances, the court will be neither supreme nor a final court of appeal.
Fifthly, on the independent judicial appointments commission, the Minister has already said that we have judges of complete independence, probity and high ability, but he states that it is unsustainable for the Lord Chancellor to continue to select judges. What evidence can he produce to show that the appointment of judges has gone wrong? If the Secretary of State is to remain accountable to Parliament for the actual appointments, as he has stated, how can he not realise that that is bound to involve political interference, especially as, in The Times today, he made clear his determination to use his role for political purposes?
The Secretary of State owes it to the House to explain how the new commission will be able to guarantee appointments on merit and be fully independent of the Secretary of State. The Government cannot have it both ways; this is no separation of powers, as the Secretary of State has claimed.
Will it be guaranteed that those appointing the commission will be statutorily prohibited from holding discussions with Ministers or their civil servants? Does the Minister agree that the principle that judges should not be politically appointed should be balanced by the principle that they should not be politically engaged, and that, if they have become so, it is because Parliament has enacted legislation that has encouraged judges not only to interpret the law, but to seek to make it?
One of the criticisms of the role of the Lord Chancellor was that he was dependent on the patronage of the Prime Minister. Can the Minister explain how that has changed?
Can the Minister confirm that there will be no interference with the security of tenure of judges, or of their salaries or pensions, or with the principle established in 1688 that means that they had better behave themselves? How will that be dealt with, if at all, in legislation? Will any discipline of judges be made a matter of public record and will any restrictions be imposed on their making political comments to the media?
How can the Secretary of State confirm that the Lord Chancellor's role in the Cabinet as the arbiter of respect for the rule of law and as the most authoritative and respected member of the Government in matters of proper procedure, fairness and constitutional law will be continued if, as he has said, his successor need not be a lawyer?
Should not the new Secretary of State be answerable directly to the House of Commons? Should not his Department have a fuller Question Time? Will the system of appointments continue the process of advertising posts?
I hope that the Minister will agree that the constitutional responsibility for judicial independence is at the heart of our constitutional government. It is essential for the protection of civil liberties, to stop the abuse of power by the Executive and to ensure judicial neutrality. Does he agree that the essence of the role is fair, efficient and effective administration of justice for the people of this country, and that that role should not have been caught up in the ludicrous pantomime of the reshuffle?
Mr. Leslie: I realise that the hon. Gentleman needed to make some sort of political point, but after that contribution I cannot tell whether he is in favour of an independent judicial appointments commission and a new supreme court or against them. Nevertheless, I shall try my best to answer some of his questions.
The hon. Gentleman asked about Green Papers and White Papers. We have set out in the consultation documents, which are significant, a number of important questions. We seek many views on some of these big constitutional issues. Many views have already been expressed historically. We know, for example, the views of the senior Law Lord and the Bar Council about creating a new supreme court and so on. Indeed, by 7 November—the closing date for consultation—we hope that we will have a full range of representations from which to make some of these crucial decisions.
The hon. Member for Stone (Mr. Cash) asked again about the transfer of functions order, about which he is particularly concerned. I understand that that matter will go before the Privy Council in July and that it will come before Parliament in the normal way. We anticipate that there will be good notice for some of those matters, and I will certainly discuss that with him in more detail.
We need to improve judicial appointments and the role of the final court of appeal while confidence in the system is high, not to wait for the system to decay. I believe that that is the right approach. I disagree with
the hon. Gentleman's implicit suggestion that merit is somehow incompatible with diversity. By creating a judicial appointments commission that is broader in its scope and has a wider membership, rather than just relying on one Cabinet Minister to make the appointments, we can have the chance of a truly more diverse judiciary, which would be a major advance.No changes are proposed to the devolution settlement, save for the impact on the Judicial Committee of the Privy Council, which currently hears appeals in devolution cases. Now that the supreme court is being taken out of the House of Lords under these proposals, the supreme court would not effectively have a bias or there would be no perception of a conflict of interests because it would not be in Parliament any more, so that would be the only significant impact on devolution in that respect.
We believe that it is important to separate the political and the judicial. That is one of the reasons why the consultation document proposes to take the Law Lords out of the House of Lords, so that they will not sit and vote in the House of Lords. Many people, not just constitutional experts, will be familiar with the rationale behind that move.
I am sorry to say, on the hon. Gentleman's pet subject, that not very many European matters are affected by these proposals, although I am sure that he will no doubt find some in the documents and come back to me at a later date.
On discipline and grievances for the judiciary, clearly the current arrangements for Parliament to express its view on the judiciary in some very extreme circumstances will not be changed. One of the questions in the consultation paper is whether or not the independent judicial appointments commission should have a role in grievance and discipline procedures.
I believe that the question of who appoints the appointers has been thoroughly aired in the consultation paper, and I hope that hon. Members will consider that. There are a number of options, but we believe that, by ensuring that there is a judicial input and the independence of a senior public figure, as well as the chairmanship of a senior civil servant, we will find a way to create a judicial appointments commission that is fair and balanced. Indeed, we have clearly set out that we would like a legal voice, a non-legal voice and a judicial voice on that commission.
The paper contains a number of questions about the role of the Prime Minister in advising the Crown, and answers are sought from those who submit representations during the consultation. I cannot say that I have a view on whether the Department for Constitutional Affairs should have more time at oral parliamentary questions, as that is a matter for the House and its authorities, and I will do whatever I need to do.
I have to tell the hon. Gentleman that, fundamentally, the significant issues that we have set out in the consultation paper are about the transparency and credibility of our judicial system—a judicial system that is important for all people in society, because there are a number of ways in which the law and how it is
interpreted affect ordinary people. I believe that this is a major change and a major constitutional advance, and I hope that the House will recognise that.
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