Examination of Witnesses (Questions 60-76)
RT HON
LORD IRVINE
AND SIR
HAYDEN PHILLIPS
GCB
WEDNESDAY 2 APRIL 2003
60. Given your parties great desire to ensure
that we have a broadening out of all the regions—even in
the quiet corridors of the Cabinet you agree with that perhaps—the
supreme court building could be put in another city such as Durham.
I am concerned about some of the cases that have come through
and surely the issue in the Lord Hoffmann case was his failure
to declare his interest. One may argue that it was deep-seated
arrogance that suggested that he did not need to declare his interest.
You have been very selective in your quotations from the Wakeham
report, which also suggested that there should be some elected
Lords, a position that you held and then decided not to hold a
matter of months later. We are now in a state of flux, not least
with what is happening in the House of Lords. Where do you see
the end game on this, or is your view that there should be a brake
on these grand constitutional reforms that have happened in the
country in the past six years and that you should maintain aspects
of your position as Lord Chancellor and all your many successes?
(Lord Irvine of Lairg) There are three
parts to your question. First of all, I am sure that Durham would
be absolutely delighted at the suggestion that a new supreme court
should be housed there, but I have to say that I believe that
London is the more likely candidate. You should also know that
the Court of Appeal from time to time sits out of London; and
the administrative court sits from time to time out of London.
It is well recognised that sometimes, because of the importance
of the case to the locality in question, the court should move
to the locality rather than the locality to the court. I support
that. I do not accept, as far as Lord Hoffmann is concerned, that
it was anything other than an oversight. We can all be guilty
of oversight. I have no doubt that he did not think of it. One
of the reasons why he would not have thought of it is because
he would have believed, as I would believe—you might say
it is arrogance—that it is inconceivable that he would have
acted other than as a judge, fairly. Anyone knowing him would
not have thought otherwise. The issue of House of Lords reform
is stretching the remit of the Select Committee. However, I would
say that there is a Joint Committee of both Houses of Parliament
that is addressing these issues. My understanding is that it will
produce an interim report that will indicate the areas where they
intend to continue to consider.
Chairman
61. Anything that is in your remit as Lord Chancellor
is within our remit, including Lords reform.
(Lord Irvine of Lairg) That is the most
alarming thing to have come from you all morning.
Keith Vaz
62. You have been Lord Chancellor for six years.
What would you say is your proudest achievement and what is your
biggest regret?
(Lord Irvine of Lairg) It is not for
me to judge what are the biggest achievements. That is for others
to say. What gave me personally very great pleasure—that
is not necessarily the same as achievement—was to chair
the Cabinet committees concerned with the constitutional reform
programme, devolution, freedom of information, human rights and
House of Lords reform. I regard the Human Rights Act potentially
as a major monument of this Government. What is my biggest regret?
I make it my business not to have regrets and to get on with the
job.
63. Turning to judicial appointments, we have
heard of your role in the Cabinet and the fact that you are a
senior member of the Government. We have heard in evidence today
of your role in the Government and in the Cabinet. You chair many
Cabinet committees and you are a close confidante of the Prime
Minister. Is it right that someone who is as political as yourself
should be making judicial appointments?
(Lord Irvine of Lairg) You have to consider the alternatives.
All major English speaking countries locate the power for judicial
appointments in the executive. If that activity were out-sourced
to a quango, the quango would be seen by many as bypassing the
democratic process. Do not forget that I am accountable to Parliament
for the overall quality of the judiciary and all the rules that
we apply in relation to appointing judges. I also think that if
it were out-sourced to a quango, there would be a real risk that
that quango would become politicised in the sense that appointments
would be made not exclusively on merit, but on the basis of compromise
and process. If it were a body dominated by the judiciary, it
would be said to be a self-perpetuating judicial oligarchy. If
it were a silk system, it would be dominated by the profession
and the attack would be that lawyers were feathering their own
nests and handing out honours to themselves. I think, although
the contrary is arguable, that appointments of judges by the executive
is seen as an important safeguard of quality and integrity. I
recognise that the contrary can be argued.
64. Sir Iain Glidewell's report published in
March 2003 takes the opposite view. It stated: "We have concluded
that it has become politically unacceptable for High Court Judges
to be appointed in effect by a Member of the Government of the
day and that in future appointments to the High Court Bench should
be the responsibility of a new, high calibre, independent High
Court Appointments Board". Surely people of merit can be
found to sit on that body. Are you really the only person who
can do that?
(Lord Irvine of Lairg) He was recommending a board
chaired by a retired judge. You have to bear in mind that most
appointments commissions are dominated by the judiciary. Therefore,
that would be exposed to the criticism that it is a self-perpetuating
judicial oligarchy, without any kind of democratic accountability
at all. I noted his opinion; it is one opinion among many.
65. Why did you not decide to go out to consultation
on the idea of the appointments commission? The report was before
Parliament in October last year. It is now April.
(Lord Irvine of Lairg) What report?
66. The commissioner's report. We have had no
consultation since then.
(Lord Irvine of Lairg) Let me take it in stages. Often
in the past I have said that I do not exclude the possibility
of a judicial appointments commission and that I may go out to
consultation, to people who really commit themselves as to whether
this is what they want. I think that there are powerful arguments
against that. I know that many people would be strongly opposed.
Never mind what Sir Iain Glidewell says, many people would be
strongly opposed and would say that that measure of responsibility
should not be out-sourced to a quango, but should remain the responsibility
of a Minister accountable to Parliament. That is a significant
argument. As you have mentioned a commission, the other thing
that I want to mention is that we must not confuse what such a
commission will be. Since May 1997 I have been working as hard
as I can to make the existing appointments system of the highest
quality that has ever been achieved. The most important thing
is the commission to which you refer. I have subjected our appointments
procedures to rigorous assessments by a supervisory commission—call
it an appointments commission, but it is a supervisory commission—but
that makes the existing appointments procedures as transparent
as any system could conceivably be. The commission is free to
see every piece of paper, to consider every assessment, to attend
every interview, to attend every meeting that I have with the
higher judiciary to discuss the merits of candidates for the Bench
or silk. It reports annually and independently. I can think of
nothing more open.
67. But judged by your own criteria of trying
to make the judiciary more representative, you have been a complete
failure. Perhaps I can draw your attention to an article in The
Times, which said that 98% were male, 87% went to public school,
90% went to Oxford or Cambridge and 38% achieved a full house
being white, male, public school and Oxbridge educated. That is
a complete failure for a Labour Government.
(Lord Irvine of Lairg) I do not believe that. I would
like a judiciary obviously that is much more representative of
the community as a whole. However, the problems lie further back
in the appointments system. We have an appointments system that
operates on merit. If we went over to a judicial appointments
commission in the stricter sense, which would be advisory for
the Government or would make the appointments itself—there
is a broad distinction in that—I would hope that the statute
would say that it made appointments on the basis of merit. But
if you are a disappointed litigant who thought that the judge
was no good and you were told afterwards, "Yes, that judge
is not much good, but of course it was a man's turn that day",
or "it was a woman's turn that day", you would be opposed
to that. I am totally opposed to quotas or anything of that sort.
The education system and the profession's willingness to go for
merit across the broadest possible sphere mean that the system
will improve over time. Unless you are challenging the merit principle,
I do not know what more to say.
68. No, I am not challenging the merit principle.
I am using your own words that there are not sufficient women
or black and Asian people of merit to make an impact on the high
judiciary.
(Lord Irvine of Lairg) That is not the case. I think
that there is an enormous number of women and members of the ethnic
communities in the pipeline who will become circuit judges and
High Court judges in the future. The point that I always make—obviously
I have failed to get it across—is that the judiciary today
or the new appointments to the Bench represent the profile of
the profession of 20 or 25 years ago because our judges are appointed
from those who have been practitioners in the law for 20 to 25
years. Although men and women enter the legal profession in equal
numbers today—50:50—that was not so 25 years ago.
Women and members of ethnic minorities are doing extremely well
against that standard.
69. When can we have a timetable for consultation
on a judicial appointments commission? This has been sitting around
since October last year.
(Lord Irvine of Lairg) I do not know that I have been
sitting on it. I do not follow that.
70. You promised consultation.
(Lord Irvine of Lairg) I have never promised consultation.
71. You have not ruled it out.
(Lord Irvine of Lairg) I have not ruled it out.
72. Are we going to see it happen?
(Lord Irvine of Lairg) It is perfectly possible that
a choice can now be made by people as to whether they want a different
system. Therefore, they would be invited to choose between the
existing system, which I think has been brought to as good a state
as it can be, and an alternative.
73. When may we have that choice?
(Lord Irvine of Lairg) What I am about to say is that
I am minded to put these issues quite soon to the test. I am prepared
to conduct a wide consultation. It will be part of a single, integrated
programme of work. It will extend to the possibility of a judicial
appointments commission; it will extend to the manner of the appointment
of Queen's counsel; it will extend to whether the status of Queen's
counsel should continue to exist or not; and it will extend to
whether the existing court dress should remain or be changed.
Therefore, I am not disappointing, Mr Vaz—the last thing
that I would wish. But I want to emphasise one thing: I have no
concluded view. I am well aware of the argument, but I have no
concluded view on any of those three very important issues. However,
I am saying that we shall be consulting on that very shortly.
74. Your statement is very helpful. You have
listed the achievements of your department over the past six years.
Why do you think that the department has had such a bad press
over the past six years over certain issues? Do you think that
it is a case of the media being beastly for the sake of it, or
do you think that it is a case of the way in which your department
presents the achievements?
(Lord Irvine of Lairg) I would never say that any
of the critics are beastly. On the contrary, I would say that
it is our failure to get our position across.
(Sir Hayden Phillips) I do not recognise the picture
that Mr Vaz has painted. If you followed through what the press
has written about the way in which the department has developed
and is developing, you would find that on the whole it is a pretty
good story.
Chairman
75. Did you mean to exclude Scotland from the
significant English speaking countries when you talked about those
that have not chosen to have a judicial appointments commission?
(Lord Irvine of Lairg) I suspect that
we are in the dying minutes. We know what the Scottish Parliament
and the executive have decided. I will not take up time telling
you about the many concerns that are entertained by many people
in Scotland about that system. However, it is important to appreciate
that Scotland has a separate system. Every legal system has its
own traditions, customs and practices that have to be continuously
appraised and justified for circumstances as those circumstances
develop. But you must not go over to some fancy new system for
the sake of theory or academic purity when we have never been
a nation of purists but of pragmatists. You look to see whether
anything that is proposed would be better in practice than what
already exists. As I have said to you, Mr Vaz, I think that these
are issues that have been around for a long time. I believe that
our system has been brought over the past few years to the best
state that is reasonably achievable with a system of this kind.
People will have to choose whether they want something different
and express their views and express them as cogently as they can.
76. We wish that to be the closing note of today's
session. We expect to see you and Sir Hayden again before long
on a range of topics.
(Lord Irvine of Lairg) And I expect to see you on
the same basis very shortly.
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