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Mr. Alan Duncan (Rutland and Melton) (Con): I thank the Minister for providing an advance copy of the statement. Unfortunately, however, this is yet another step in the sorry saga following last summer's botched reshuffle, in which the Lord Chancellor was suddenly abolished, and then miraculously resurrected. The Government have embarked on a programme of reform that has no rhyme or reason to it. There is no special call for it, and there is certainly nothing but danger in it for the maintenance of high-quality justice devoid of political interference. Its only motive seems to be the Government's need to parade some sort of spurious radical momentum.
The Government have cobbled together in a piecemeal manner an attempt at a coherent policy. It has not been thought through, and it satisfies only a quite elementary standard of political theory. Indeed, why has the Minister decided to do this without consultation on the very day on which he is publishing the responses to four other, related, consultations? We have been told today of a change to the interrelationship between the Lord Chief Justice and the Secretary of State for Constitutional Affairs, but without any clear legislative context.
The Government have always claimed that their reforms are designed to protect judicial independence, and we heard it again today. We have always argued that they are not, because when they speak of judicial independence, they advance arguments in favour of the separation of powers. Well, now we have it in black and white. Judicial independence is clearly secondary, as the document that they have published alongside today's statement says:
- "The overall aim of these reforms is to put the relationship between the executive, legislature and judiciary on a modern footing, respecting the separation of powers between the three."
Is it not the case that today's document makes a mockery even of the separation of powers? It is riddled with no end of requirements to consult, confer and do things concurrently—not so much a separation as a mess. Is it not also the case that inasmuch as there is an attempt to separate powers, it is not a balanced structure, because the Secretary of State has swiped all the powers that matter most—it is a system of checks and imbalances?
Over the past few months, the Government have put the judiciary in an impossible position. For fear of losing many precious elements of judicial independence, they have been forced to bow to political pressure and protect whatever they can. We do not blame the judiciary for a moment, and in the face of what amounts almost to duress, the Lord Chief Justice and his judicial colleagues have behaved with dignity and propriety.
Let us not pretend, however, that the Lord Chancellor's proposals enjoy the enthusiastic endorsement of the judges. They do not. At best, they have their reluctant acquiescence. They have been left with no option but to salvage whatever safeguards they have been able to negotiate. It is entirely the fault of the Prime Minister and the Lord Chancellor that they have been compelled to express their position in secret negotiations instead of open debate. Parliament has been totally bypassed—we will just be asked to rubber-stamp a fait accompli.
The fundamental flaw in the Government's changes is that they think that a rules-based separation of powers will work better than the existing structure. It will not. What is likely to ensue is a dramatic erosion of the independence of the judiciary, with a real risk of its increasing politicisation. It also risks pitting the judiciary and politicians in permanent open conflict. Does the Minister claim that today's proposals do have the enthusiastic endorsement of the Lord Chief Justice, and that the removal of the Lord Chancellor is Lord Woolf's preferred option and now supersedes the opinion that he gave in the Cohen lecture in December, in which he said:
- "the disappearance of the Lord Chancellor will leave the Judiciary more exposed to the attacks of politicians"?
What does it mean to say that the judiciary must be reflective of society? The Lord Chancellor and the Minister have said that it is only merit that matters, but they have also included that applicable criterion. What exactly must it reflect? How many existing judges under the current system does the Minister think should not be
in their job? How does he reconcile appointment only on merit with a parallel requirement for them to be reflective of society? Will the decisions—I request seriously an answer to this—of the Secretary of State for Constitutional Affairs in the discharge of his statutory duty be open to judicial review or will they not, and will, indeed, the entire Government be so liable?To us, this reform contains dangers for judicial independence. Its facile radicalism reveals that the Government have no understanding of the value of our existing arrangements. The present system may look odd in theory, but it works in practice. Our only interest is in the quality of justice for Britain. We want to keep high-quality judges, exercising their duties in the best possible way, free from posturing politicians trying to control them or second-guess their judgments. This proposal does the opposite: it creates a pale imitation of the existing Lord Chancellor, operating in a highly politicised environment. He will have most of the powers of the Lord Chancellor and none of the responsibility entrenched in convention and traditions of conduct. It is a backward step, and we will resist it.
Mr. Leslie: I regret the comments of the hon. Gentleman, who is resisting from gut instinct, rather than looking at the detail of what is proposed. I realise that those in the Conservative party are always looking to preserve the status quo from their Westminster-established viewpoint—never mind what the wider public and the wider world think. In fact, they were due to publish a legal reform policy paper some time last Thursday. I have looked all over to see whether I can find its contents; I have not seen it yet, but perhaps the hon. Gentleman may have a chance to send it. It was mentioned in The Daily Telegraph on Thursday.
It is right that we end the blurred role of the office of Lord Chancellor. It has a very important series of functions. It should not be perceived as an antiquated role, but all those different elements should be regarded with the importance and vigour that they deserve, and it is important that we move forward with these sensible reforms, but in partnership with all the different stakeholders, and the judiciary in particular. The hon. Gentleman says that the Government are now talking about the separation of powers as the only avenue down which their policy is developing. Of course it is true that we want to ensure that we clearly define the separation of powers, where it is appropriate, but that is not incompatible with having a partnership between the different branches of the state. That is entirely right, and it is what we want to see.
The hon. Gentleman may not be aware that the Lord Chief Justice is commenting on these proposals, probably as we speak. He has said that he welcomes this statement and the proposals, which have his "firm support". In view of the hon. Gentleman's question on whether I regard that as an endorsement from the Lord Chief Justice, I have to say, yes, I do. He also asked whether it was possible to have an ability to keep the existing system. I believe that it is difficult to justify a senior politician at the core of the judiciary. These measures are intended to bolster and strengthen the independence of the judiciary.
Of course there will still be a need to scrutinise the Bill, which will be introduced in due course, and there will be worthwhile discussions about the hon. Gentleman's questions on the ability for judicial review of the different duties at that time. We want to see a general duty on all the Government, but also a specific duty on the Secretary of State, not least in view of the hon. Gentleman's comment that we need a voice in Cabinet specifically with regard to the preservation of judicial independence. Our response today helps to some extent to reflect some of those concerns.
The hon. Gentleman mentioned that he was concerned when I said that merit should be the overriding criterion in appointments—[Hon. Members: "The only"]—the sole criterion in appointments—suggesting that that was somehow going against the ability to secure a diverse judiciary, reflecting the composition of society. I happen to believe that merit is not incompatible with diversity. I believe that all society can, potentially, be included in the judiciary by merit, as the sole criterion, and that we now have the opportunity to give the Judicial Appointments Commission that remit, to take an overview of those matters. Again, I hope that the hon. Gentleman will look at these proposals in more detail. It is important that we modernise our constitution not only to put the different branches of our Government and state on a firm footing, but to enshrine the independence of the judiciary, and I hope that the hon. Gentleman will reflect on that and think again.
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