Examination of Witnesses (Questions 520
- 539)
TUESDAY 6 JANUARY 2004
RT HON
LORD FALCONER
OF THOROTON
QC AND SIR
HAYDEN PHILLIPS
GCB
Q520 Keith Vaz: Do you agree with the
European Charter on the Statute for Judges that at least 50% of
the Appointments Commission should be judges?
Lord Falconer of Thoroton: I think
there should be a significant judicial element. I do not think
it is necessary for judges to make up 50% or more of the appointing
panel, that is, the Judicial Appointments Commission rather than
the one appointing the Judicial Appointments Commission.
Q521 Keith Vaz: First of all, my congratulations
on your appointing the first woman member of the Law Lords. Do
you think a Judicial Appointments Commission would have done the
same thing as you?
Lord Falconer of Thoroton: I am
sure they would have done.
Q522 Keith Vaz: So what is the point
of having them?
Lord Falconer of Thoroton: Because
I think you need a process that is much more open and is seen
to be much more open. Many, many people will apply to be judges
if they think the process has got a much more open, un-inward-looking,
un-opaque feel from the current arrangements. I also think that
setting up the Judicial Appointments Commission can allow much
greater introduction of human resources processes than currently
exist.
Ross Cranston: I should make the declaration
that I am a recorder and barrister.
Chairman: Yes, it is something I omitted
to do at the beginning. Does anyone else want to declare an interest?
Keith Vaz: I am a non-practising barrister
and my wife holds a judicial appointment.
Mrs Cryer: I am on the supplemental list
of Bradford magistrates.
Q523 Ross Cranston: Sorry to set that
hare running! Could I just follow up Mr Vaz's point, and it is
an argument put to us that you could have a Commission that appoints
bland appointees, which sort of has an antiseptic approach, that
there is that danger of committees not making the innovative and
exciting appointment, so what sort of mechanisms do we use to
make sure that does not happen?
Lord Falconer of Thoroton: You
do not want the Judicial Appointments Commission to be simply
making bland appointments. I think there are three mechanisms
by which that can be avoided: first of all, who is appointed and
if there is a clear will not to have bland appointments, then
that should be reflected in the appointment; secondly, I think
there is a significant role for the Executive in relation to this
not in the sense of making individual appointments, but making
it clear both in relation to what they say and, in relation to
how they deal with the names put to them, the sort of judiciary
that they expect to be appointed, not in terms of individuals,
but in terms of type and; thirdly, obviously the Judicial Appointments
Commission itself will have a vision, one would hope, of the sorts
of appointments they wish to make. So there is a risk there, but
there is absolutely no reason why that risk should mature and
I believe there is much, much greater chance of there being a
change in the way that appointments are made in terms of type
with the Judicial Appointments Commission than under the existing
system.
Q524 Ross Cranston: But do you try to
do that in the legislation or do you do that by some sort of statement
from the Executive that this is what it is expecting the Commission
to do?
Lord Falconer of Thoroton: Well,
the primary legislation should embody the principle that appointments
must be on merit, but I think we need to look to see whether or
not, as it were, criteria can either be agreed maybe in secondary
legislation which encourage a non-bland approach to the appointment
of judges.
Q525 Ross Cranston: I take the point
that in terms of your actions subsequently or the Secretary of
State's actions subsequently, that could send a message to the
Commission of the sort of people he wants to be appointed. We
had evidence of course from Peter Herbert from the Society for
Black Lawyers and we also heard from various women lawyers as
well about increasing diversity and perhaps I could just ask you
about how that is going to be done. Again are there mechanisms
whereby we can ensure that, first of all, there are applications
from, for example, ethnic minority candidates?
Lord Falconer of Thoroton: Sorry,
are you talking about the new system or the old one?
Q526 Ross Cranston: Under the new system,
yes. How do we ensure this greater diversity while still retaining
the merit principle?
Lord Falconer of Thoroton: As
a principle, subject to the merit principle, we would wish there
to be the encouragement of greater diversity. The Executive has
got a role in terms of leadership to play in that respect. The
precise detail of the mechanisms by how it is done should primarily
be a matter for the Judicial Appointments Commission. To take
an example that has been in play throughout the course of your
inquiry, and indeed I think it was referred to in the initial
evidence session I came to, the idea of there being one route
into the judiciary through starting at a younger age, starting
perhaps in a more junior role in the judiciary and then being
promoted upwards, the Executive could make it clear that they
would expect that route to be followed and the Judicial Appointments
Commission can then develop methods by which they can then attract
people into that route. It is a combination of the Judicial Appointments
Commission and the Executive. I also think it is incredibly important
that the professions themselves have got a very considerable role
to play in relation to it because the more women, the more black
and minority ethnic candidates that, as it were, last the course
in relation to professional career, the more there is a wider
pool from which to draw, whatever the arrangements for judicial
appointments.
Q527 Ross Cranston: And one aspect of
that or one corollary of that would be appointment at a younger
age?
Lord Falconer of Thoroton: Yes,
indeed.
Q528 Ross Cranston: One idea which was
put to us by Lord Justice Thomas was that you had permanent, part-time
appointments and I think he was thinking in particular of the
solicitor, say, in commercial practice to whom that might be attractive.
Is that a possibility?
Lord Falconer of Thoroton: Yes,
that sounds an extremely good idea to me. One needs to work out
the detail both in relation to which judicial level it starts
and what sorts of judicial level. I could see that working, for
example, in relation to deputy district judges sitting in crime,
deputy district judges sitting in matrimonial proceedings, deputy
district judges dealing with civil cases, and it could really
provide a significant diversification in relation to the sorts
of people sitting without in any way diluting the merit principle.
Q529 Ross Cranston: Again can I just
ask you about the mechanisms. How do you ensure the Commission
will be doing that?
Lord Falconer of Thoroton: Well,
resources will be for the Executive and individual appointments
will be for the Judicial Appointments Commission, so does one
do it by the Executive saying, "We'll make resources available
for X number of part-timers", or does one do it by the Executive
saying in the criteria, "We would expect there to be a significant
number of part-time appointments in this particular level of judiciary",
or does one do it by agreeing informally with the Judicial Appointments
Commission that that is what one expects? I do not know which
is the best of those three mechanisms, but I can see no difficulty
in one or other or a combination of the three being used to produce
the particular result in that example that we are after.
Q530 Ross Cranston: They would have to
get the message. That is the key point.
Lord Falconer of Thoroton: They
would have to get the message in one way or another. That message
could be transmitted.
Q531 Ross Cranston: I know one of our
colleagues, who is not here this morning, would have wanted to
ask a question about the incremental approach and I think, in
a way, you addressed that before. Lord Hope, for example, gave
us evidence that all we needed was a standing order to make sure
that the Law Lords did not speak or vote on matters in the House
of Lords and that you yourself would not sit. I think, in a way,
that has been addressed, but we did have some interesting evidence
which I have only had a look at this morning from Professor John
Griffith, a former colleague at the University of London, and
he, in a way, takes the same view from a radical perspective.
In fact he starts by quoting Yeats: "Things fall apart; the
centre cannot hold; mere anarchy is loosed upon the world".
I think the argument is that somehow by putting the judges off
in a separate Supreme Court, you are pushing them towards some
sort of isolation and that you would not get the mutuality of
understanding that you get at the present time because the Law
Lords are across there in the House of Lords. I think this did
come across to some extent from the evidence, say, of Lord Hope
and other Law Lords who are not taking Lord Bingham's approach
that the Supreme Court is the way forward. I am just wondering
if there is anything supplementary you would like to say about
that?
Lord Falconer of Thoroton: No,
I read Professor Griffith's evidence and Lord Hope's evidence
and he describes a walk in the corridor in the House of Lords
and the House of Commons and meeting Scottish MPs and he found
it useful to keep in touch with things. I do not think that that
of itself is a justification for keeping, as it were, the court
of final appeal in the Parliament building. I do think there is
a broader point beyond that made by Lord Hope about you do not
want the judges and the Executive to get so separate, and I cannot
remember which one of your witnesses, but one of your witnesses
referred to the possibility of 15 years down the line and there
being some great conflict between the Executive and the judiciary.
Q532 Ross Cranston: It was Robert Stevens.
Lord Falconer of Thoroton: That
is right, and that is why I think a recommending commission and
ensuring a continuing partnership between Executive and judiciary
is important to avoid that sort of situation developing.
Q533 Ross Cranston: But again you need
to think about the mechanisms to achieve that particular result.
Lord Falconer of Thoroton: One
of the mechanisms will be plainly the relationship in relation
to appointments. Another mechanism should be, I think, getting
judges involved in a non-executive capacity in, for example, strategic
planning for the court service so that they get some stake in
the administration of the buildings in which they operate and
get a greater understanding than they have got at the moment perhaps
of the resource issues.
Q534 Keith Vaz: You will be able to set
out a vision statement on diversity as Secretary of State.
Lord Falconer of Thoroton: Yes.
Q535 Keith Vaz: But it will be up to
the Judicial Appointments Commission to decide how that is implemented.
Lord Falconer of Thoroton: That
is correct.
Q536 Keith Vaz: Have you ruled out the
possibility of targets being set? Bearing in mind the merit principle,
which of course underpins all of this, and the targets being set
for black and Asian people being appointed as judges and more
women being appointed, targets of course do not prevent the Commission
not appointing, but it does set out in a very clear way what you,
as the Secretary of State, intend to do.
Lord Falconer of Thoroton: I think
it would be wrong for the Secretary of State to set out specific
targets. I would not rule out the idea of the Secretary of State
setting out aspirations in relation to that. As to whether or
not the Judicial Appointments Commission thought that targets
were a good idea, I think that should be a matter for it.
Q537 Dr Whitehead: A number of people
have put to us, and we have indeed discussed in this Committee,
the difference between what you might call the illusion of the
separation of powers and the reality in the Constitution where
the reality of the separation of powers is not as it might appear,
and yet you believe that the removal of the judges from the House
of Lords will have a particularly beneficial effect on perception
of judicial independence. Do you think that perception is more
an illusion than a reality?
Lord Falconer of Thoroton: No,
I think it is wrong that you appoint somebody to the court of
final appeal by appointing them to the Legislature because I think,
as a matter of simple principle, you are appointing them to rule
on the laws, not to make the laws, so, in principle, they should
be separate. I think it is more than just perception because I
think you can see in the things that have been happening recently,
say, over the last 10 or 15 years, that there are problems in
the Law Lords being in the Lords. Lord Bingham gave evidence,
and these are not his words, but he said he made a speech in the
Lords about a particular Criminal Justice Bill and I think he
said, "I broadly supported the Bill and I made six quite
anodyne reservations about the Bill", at which point counsel
in the particular case subsequently objected to him sitting in
the particular case. A distinguished advocate, who is referred
to in a paper by Roger Smith and Professor Stevens, refers to
addressing the House of Lords' judicial committee and she says
quite legitimately that they excluded some Pepper v Hart
material which was slightly odd because one of the Law Lords sitting
on the panel had actually been present at the debate at the time
the material had been given, so he had to forget what he had heard.
She also refers at lunchtime in the same case to the members of
the judicial committee being lobbied, quite legitimately, on an
issue that was live in relation to the case in the middle of the
case, so it is not just, I think, about, "It's an illusion".
I think there is a reality that is getting increasingly problematic
in relation to it and I think that is why, and Lord Hutton spoke
to me about this, or I assume that is why the senior Law Lord
thought it appropriate to make the statement he did about the
circumstances in which the Law Lords would operate. You can see
signs of strain already. It is not affecting at all the quality
of judgments coming out of the Law Lords because they are second
to none and I think everyone would agree that they are of first-class
quality, but I think we should move now before the problems get
worse.
Q538 Dr Whitehead: The Lord Chief Justice,
on the other hand, has indicated that he feels in many ways that
there is a value in him remaining in the Chamber in fact to safeguard
judicial independence in order to speak up for the independence
of the judiciary in the House of Lords. Do you think if you set
one argument against the other that that argument has some merit?
Lord Falconer of Thoroton: I am
aware that that is the Lord Chief Justice's view. I take a different
view in relation to that. I think that if you are appointed as
a judge, you should be, as it were, ruling on the laws, not making
the laws, and I think that the distinction between the two gets
blurred if you habitually appoint the Lord Chief Justice or the
Master of the Rolls to sit with the Lords because the areas in
which remarks, within the Legislature, are made will be about
particular provisions to change the law. There is absolutely nothing
wrong with the Lord Chief Justice or the senior judiciary making
statements publicly about areas where there is, for example, a
concern about the independence of the judiciary, but let that
be done from a place separate from the Legislature.
Q539 Chairman: Actually one of the places
it might be done is here in this Committee which is not a place
separate from the Legislature, but there are ways it can be done.
Lord Falconer of Thoroton: There
is a world of difference, I believe, between being a witness before
this Committee, on the one hand, and being a participator and
a potential voter in the second legislative Chamber.
Ross Cranston: You get much more publicity
saying it outside than in here, I am sure!
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