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Mr. Garnier: The hon. and learned Gentleman is giving a very interesting talk. I wonder how far what he is describing of the current state of the judiciary and its independence will be changed, positively or adversely, by the Bill.
It seems to me that the Bill will provide a firm underpinning, especially in the principles set out at its very beginning, for the standing of our
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judiciary. I will come on to that in a moment, and I will acknowledge that the standing of our judges is unrivalled, both in their merit and in the quality of their decision making.
I have said in earlier debates that there has to be mutual respect between institutions. Judicial independence does not mean that judges can completely neglect what Parliament, for example, says. Parliament, of course, has to respect judges' decisions, and we have rules about what we can say about judicial decisions and how we can criticise judges. Judges have to respect legislation, and there is no criticism of the position at present. In 2003, Mr. Rusbridger of The Guardian brought a case under the Treason Felony Act 1848, arguing that if he advocated republicanism he might be in breach of the Act. The House of Lords said that it was not for it to say that the Act was no longer extant.
There is also an obligation on judges to make decisions in accordance with law, even controversial law, and to respect institutional expertise. The recent case law on the Human Rights Act 1998 is very interesting. Judges have developed a notion of judicial deference in relation to some decision making by the Executive, especially when moving away from article 6 on purely judicial functions to some of the other articles, saying that they have to respect the Executive and Parliament. In the recent Belmarsh case, Lord Bingham said in relation to the notion of whether there was a public emergency to satisfy article 15 that great weight had to be given to the judgment of the Home Secretary, his colleagues and Parliament, because they were called on to exercise a pre-eminently political judgment.
Other aspects of the independence of the judiciary came up in debate in the other place. Should judges be appointed to inquiries, for example? I do not take any strong view on that. Recently, the Lord Chief Justice came to an agreement with the Lord Chancellor on how judges should be appointed to inquiries, so as to ensure that the standing of the judiciary is not undermined.
Once we have the principles right, we can move on to discuss in a more informed way some of the Bill's specific provisions. Let me come first to the supreme court. I confess that, initially, I had some misgivings about its creation. As I have said, the House of Lords is highly respected in its judicial capacity. No one could suggest that it has not been independent, even though those of their lordships acting in a judicial capacity have been Members of the House of Lords as a legislative body. If there were concerns, they could have been dealt with by, for example, the Lord Chancellor not presiding over the Judicial Committee or by the Law Lords not participating in debates in the House in its legislative capacity.
Having listened to the debates and having heard evidence given to the Constitutional Affairs Committee, I have been persuaded by what the Lord Chancellor has said, as I have by the comments of Lord Bingham and Lord Woolf. The creation of a supreme court, as Lord Steyn put it in a lecture a couple of years ago, is a "badge of judicial independence". The institutional separation that the supreme court represents minimises the risk of any public perception that judicial independence is compromised. Like the hon. Member for Beaconsfield,
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I do not give great credence to the article 6 argument. Although that argument might ultimately have been lost, I do not think that we should have regarded it as especially persuasive. However, in terms of the basic principles inherent in our common law systemthe rule of law and the independence of the judiciarya supreme court is an eminently sensible idea.
Of course, even if we get that far, that is only the start of the debate. What sort of body are we talking about? We are not talking about a constitutional court. We are not talking about something like the Bundesverfassungsgericht, the German federal constitutional court. The history and institutional arrangements there are quite different; there is a written constitution and a federal system. Similarly, in the United States, there is a mainly constitutional court. With more devolution and human rights cases coming up, the House of Lords or the new supreme court will deal with more constitutional issues. None the less we are not establishing a purely constitutional court, which would be concerned only with constitutional issues. Our tradition has been that constitutional issues are decided by the ordinary courts, which also decide matters of common law and statutory interpretation. It is absolutely right that that continue to be so.
There is an issue about whether we have a UK court. We now have a clear statement that we indeed have a United Kingdom court. As I understand it, the decisions of the court on cases from England, for example, will not be binding in the other jurisdictionsin Scotland or Northern Ireland. Of course, their persuasive force will be greatI need only remind the lawyers present of the important Scottish case of Donoghue v. Stevenson, which was accepted as binding in all jurisdictions.
Resources have been raised as an issue. We members of the Constitutional Affairs Committee were impressed by the system that governs the High Court of Australianot only the resources available to the court, but the control that the court itself has over the allocation of resources. The supreme court must have a building appropriate to its status. Although it would be an inconvenience for the hon. and learned Member for Harborough (Mr. Garnier) and for me to be unable to sit there as recorders, it seems to me that, when refurbished, a building on Parliament square would be most appropriate to a supreme court.
Hon. Members have spoken about fees. I am not especially concerned about fees in a supreme court. The legal costs in most of the cases that go to such a court are so great thatunless someone has taken the case pro bonothe fees are infinitesimal. None the less, there is an issue about the principle of full cost recovery, which has not been debated by the House since it was introduced in the early 90s, and it would be appropriate to return to the subject at some stage.
The supreme court will not sit en banc. That is partly because judges, in the past, also had to sit in the Privy Council, and partly because there was a separate panel to hear leave applications. I have no difficulty with that continuing.
It is no secret that I have not been completely happy with the approach to appointments. Although it is not enshrined in the Bill, it is accepted that there has to be geographical representation: just as in Canada there are always three judges from Quebec, it is acknowledged
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that there will have to be representation on our supreme court from Scotland and Northern Ireland. My concern centres on the fact that the appointments commission is to put only one name forward. I have argued in the Constitutional Affairs CommitteeI divided the Committee, and it accepted the viewthat a number of names should be put forward. That is because the judges who are appointed to the supreme court will make extremely important decisions on tax, civil liability and contract as well as on constitutional issues. In my view, greater democratic input is needed. I agree with Professor Robert Hazell, who gave evidence to the Lords Select Committee. He said:
"I strongly believe that ministers should continue to be involved in judicial appointments and have a bigger say than is now proposed and so should Parliament in its classic scrutiny role. On the executive having a choice, it is very important for the executive to retain a role in senior judicial appointments primarily so that the Government itself should retain trust and confidence in the judges."
An additional argument is that such an approach offers additional protection for judges: if they are appointed by politicians, politicians might be inhibited from criticising them too much, whereas if, in effect, judges are appointed by the commissionthe Minister will have only a vetothey might be subject to greater criticism.
Before I discuss the judicial appointments commission, I should declare the interest that I was a member of the Commercial Bar Association group that made a detailed submission on the subject last year. I was pleased to hear that the hon. Member for Beaconsfield is generally happy with that part of the Bill. I was not surprised to hear that, because we have reached the present position through evolution. The Law Society called for reform in the early 90s. Lord Mackay as Lord Chancellor opened up judicial appointment by advertising for circuit court judges. Lord Irvine appointed a Commissioner for Judicial Appointments, and Sir Colin Campbell has reported on a number of occasions. The system has been brought generally into line with modern principles of appointment, with equal opportunities and feedback for those who are disappointed. Lord Irvine also instituted the annual publication of a report on appointments. In a way, the proposals in the Bill build on the principles of openness and transparency that already operate. Scotland has a judicial appointments body and Canada has commissions that recommend appointment in some of the provinces and at federal level.
There are issues surrounding composition. The Constitutional Affairs Committee took the view that the commission ought to be chaired by a lawyer, but the concordat between the Lord Chief Justice and the Lord Chancellor concedes that a lay member should chair the body, so we have to accept that. There has been some discussion about the extent to which the Lord Chancellor can issue guidance, and the Joint Committee on Human Rights states, at paragraphs 1.54 and 1.55 of its report, that guidance by the Lord Chancellor would breach the independence of the judiciary. I reject that view. There can be no human rights-based objections to the Lord Chancellor giving guidance to the judicial appointments commission.
Merit is the cardinal principle. We cannot have a representative judiciary. Just as I want the best person to do brain surgery on me, I want the best judges.
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None the less, diversity is not inconsistent with merit. The excellent 2004 consultation paper "Increasing Diversity in the Judiciary" demonstrates the increase in the number of women and ethnic minority lawyers appointed to the judiciaryfor example, Mrs. Justice Linda Dobbs was the first black female appointee to the High Court. I commend my right hon. and noble Friend the Lord Chancellor for quickening the pace of increasing diversity.
I take the point made by the hon. Member for Beaconsfield, but I would put it more colloquially: we have to beat the busheswe have to encourage people to apply. Some people might, for some reason, be dissuaded from applying. My concern about the judicial appointments commission as proposed is that only one name will be put forward. My argument is the same as I advanced in relation to appointments to the supreme court: it seems to me that democratic accountability would be better served by more than one name going forward to the Minister or the Lord Chancellor.
Both in terms of the principles that I outlined at the outset of my speech and in terms of the bulk of its details, I think that the Bill is an appropriate measure to put to the House. I shall certainly support it tonight.
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