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Mr. Edward Garnier (Harborough) (Con): Will the Minister tell me precisely how judicial independence is at risk under the present system? Will he tell me the implications of his statement for the ministerial and parliamentary role of the Law Officers?
Mr. Leslie: I do not believe that the statement has any implications for the role of the Law Officers. I set out why I think that it is important that in abolishing the office of Lord Chancellor we should have a clearer definition of the respective judicial functions of the Lord Chief Justice and the Secretary of State. The answer is that if a senior politician—a member of the Cabinet appointed by the Prime Minister—acts day to day with almost untrammelled powers at the heart of the judiciary to interpret and make laws, there is clearly a problem. We already know that there are difficulties, which is one reason why there is a strong rationale behind the creation of a Supreme Court. I urge the hon. and learned Gentleman to consider seriously the important reasons and rationales behind our proposals.
Mrs. Ann Cryer (Keighley) (Lab): Is my hon. Friend aware that early last summer, Professor Erik Jurgens, a well regarded constitutional lawyer and the rapporteur of the Committee on Legal Affairs and Human Rights in the Council of Europe, appeared before the Committee of which I am member, which was at that time called the Committee on the Lord Chancellor's Department? He said that owing to our lack of a clear
separation of powers, if the UK were now to apply to join the Council of Europe, we would probably not be admitted.
Mr. Eric Forth (Bromley and Chislehurst) (Con): Oh good.
Mr. Leslie: I have not met Erik Jurgens, but I have met another Eric, who perhaps has differing views on the matter. I know that the Constitutional Affairs Committee, as it is now known, under the chairmanship of the right hon. Member for Berwick-upon-Tweed (Mr. Beith), has been examining the matter carefully, so perhaps I shall review the evidence that it received from Professor Jurgens.
Mr. A. J. Beith (Berwick-upon-Tweed) (LD): Is not the most significant change from the Government's original proposals that the Minister has announced today the fact that many of the most senior appointments—heads of divisions and judges of the Court of Appeal—will be appointed not by the appointments commission, as such, but by a panel of four on which the Lord Chief Justice or a Supreme Court judge will have a casting vote? Was that change necessary to deal with the level of anxiety that was expressed to the Select Committee by members of the judiciary, and does that illustrate how much work must be done on the range of constitutional proposals to get them right and deal with such anxieties? Is the Minister thus ready to recognise that the Bill must not be rushed through?
Mr. Leslie: Nobody wants to rush legislation, but it is important to make good progress with our proposals when they are clear and solid. The right hon. Gentleman makes an important point. We have reflected on the responses to the consultation that we received and there are slightly different proposals on the way in which the Judicial Appointments Commission would bring its decisions to bear on more senior judicial posts, which reflects the need to have a stronger input from the senior judiciary on several of the senior posts. The Secretary of State would have greater input in some of the leadership posts because they are partly administrative. The important point is that all appointments would come as recommended by the Judicial Appointments Commission, which represents the new transparency that we must bring to the system.
Chris Bryant (Rhondda) (Lab): The Minister will know that many Labour Members welcome the separation of powers envisaged in his proposals, not least because every time this country has been involved in helping to draft a constitution for another country, we have insisted on precisely that separation of powers, especially in Germany. One thing remains uncertain, however. Does he believe that the new duty of the Secretary of State for Constitutional Affairs to protect the independence of the judiciary can be performed only from the House of Lords, or is it time that we repatriated those issues down to the elected House of Commons?
Mr. Leslie: It is entirely true that the Prime Minister will be able to appoint whomever he or she chooses in future as the Secretary of State for Constitutional
Affairs, and the legislation would apply to the post in whichever House that occurred. At present, the arrangements work well, and long may they continue—[Interruption.]—in respect of the current holder of the post of Secretary of State for Constitutional Affairs.I take my hon. Friend's point on the international view. That was reflected in the comments of my hon. Friend the Member for Keighley (Mrs. Cryer). It is important that we continue to lead in the strong democratic, but also high-standing, judicial manner, in which we are held in high regard by the rest of the world. The reforms will aid that.
Sir Patrick Cormack (South Staffordshire) (Con): Is the Minister aware that in answering questions he said that the present system works well; that it is important to enshrine the independence of the judiciary; and that there must not be a politician at the core of the judiciary? How does he reconcile those statements with the implicit statement that there will, indeed, be a very political politician at the heart of the judiciary, possibly someone who sits in this House and has campaigned on a party ticket? What guarantee does that give to those outside the House?
Mr. Leslie: If the hon. Gentleman looks at the detail of our proposition, he will see that we do not want a politician at the heart of the judiciary. That is not the proposal. The Secretary of State will not have those judicial functions. That is the whole point of today's statement.
The hon. Gentleman says that we make such announcements when there is little criticism of the existing system. We do have good judicial appointments, but it is not always best to make reforms when the system is collapsing. Sometimes the best way to progress is to make improvements in a calm atmosphere. That is precisely what we are doing.
Keith Vaz (Leicester, East) (Lab): May I congratulate my hon. Friend on his proposals and give him my full support? However, he must be aware that, notwithstanding the agreement reached between the Lord Chief Justice and the Lord Chancellor, there is enormous concern among the judiciary about the way in which the proposals have been taken forward? Given the detail that will be required in establishing the Judicial Appointments Commission, does he think that there should be a pause in the timetable? I know that the Government have an ambitious timetable to get the measure through, because they are a reforming Government, but surely sufficient time must be given to ensure that the proposals are embedded in our constitution, because it is unlikely that we will deal with them ever again.
Mr. Leslie: My hon. Friend will no doubt be involved in the scrutiny of the legislation as it comes before the House. From end to end, we will probably have about 18 months of scrutiny from the time of the announcement of the proposals to when they are finally enacted, such is the length of time of consideration of legislative change. I welcome his support, but I do not think that the timetable is rushed. It is cautious, but it
also ensures that we make progress because of the agreement that we have made, not least with the Lord Chief Justice, as achieved and articulated today.
Sir Michael Spicer (West Worcestershire) (Con): How do we have an independent judiciary if the whole system is about to become subservient to the European Court of Justice? Whatever the Minister does to the Lord Chancellor, can he avoid calling him Lord Speaker?
Mr. Leslie: The chairmanship—or speakership—of the other place is a matter for it to decide. The Government believe that we should not dictate to the other place what arrangements it should choose. It is not for this House to say how the other House should settle matters, but we will help to guide those discussions and to inform them with our reforms.
I am surprised that it has taken about 45 minutes for the spectre of Europe to raise its head. No changes have been proposed in the relationship between the legal system in England and Wales and that in Europe. I suspect that hon. Members will have to make those proposals another day.
Vera Baird (Redcar) (Lab): I congratulate my hon. Friend on thoughtful progress, and particularly on the decision that the Judicial Appointments Commission will not be chaired by a judge and will not have judicial majority. I am sure that he is aware that, had it been any other way, progress towards an open-merit system of appointments would have been very slow—extracting members from the usual white male suspects. Will he reconsider his thinking on the Secretary of State's role in discipline? Would it not be better if it were at arm's length, perhaps in the hands of the Judicial Appointments Commission? In order to be an effective system and not just a hostage to public complaints, with all the attendant danger, ought there not to be proper monitoring and appraisal of judicial competence—nothing to do with independence—as there is in every other public service job?
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