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Vera Baird (Redcar) (Lab): It is a pleasure, as ever, to follow the right hon. Member for Suffolk, Coastal (Mr. Gummer), although I am baffled by a number of the things that he said. I am left almost speechless by his comments about this Government putting people into poverty, when in fact we have rescued more than 1 million children from the poverty in which they were left by his Government, and by his complaint about cuts in legal aid, when we are spending more on it than ever before and are distributing it better.
I should like to get to the point of this debate—something that the right hon. Gentleman did not do to a great extent—and say that this is an excellent Bill. Its main provisions will bring about a long-overdue modernisation of our constitution and start the process of making the courts and the legal system citizen-centred public services, which, to be consistent with a thoroughgoing democracy, is what they should be.
I applaud the Bill's long-overdue commitment to the rule of law and judicial independence, and I congratulate the Government on introducing it.
I strongly support the substantial change to the office of Lord Chancellor. In particular, he will no longer sit as a judge, he will not act as a Speaker of the House of
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Lords and he will no longer carry personal responsibility for the appointment of members of the judiciary and Queen's counsel. One could say that the main need for the Lord Chancellor to offer a separate personal guarantee of independence of the judiciary has been much reduced. I will not repeat the two quotes that I have already given from the Lord Chief Justice, whose negotiating skills with the Bill must be applauded, but he said that the Bill offers a better guarantee of judicial independence. I agree with him. However, there continues to be a requirement that the Lord Chancellor should—indeed, must—defend judicial independence and ensure that the judiciary has the resources to exercise its function and in government to represent the public interest in the administration of justice. That clearly requires the Lord Chancellor to be a senior Minister, but it certainly does not require either of the two restrictions that have been put on it in the Bill: notably that the Lord Chancellor must come from the Lords and that he must be a lawyer—not a bit of it. A Minister in the Lords is no more and no less secure in a ministerial post than a Minister in the Commons. He is no better and no worse equipped to take a strong stance in Cabinet than a Minister in the Commons.
I take the point made by the Constitutional Affairs Committee that if someone at the end of his career is Lord Chancellor, as in the past—not least because he sat as a judge in the House of Lords, and such seniority is usually accompanied by maturity of years—he will not have a future to be interrupted if he defends the rule of law against his patron's displeasure. Another argument, of course, is that being Lord Chancellor in this place would be the pinnacle of anyone's achievements, but if he disagreed with his patron he could easily have that career ended, in suddenly imposed obscurity, instead of staying in that high-status, top-performing, challenging role. There is still a great deal of pressure, and while Ministers are appointed as they are there is no structural answer. There is only the integrity of the appointee and his or her strength of character. Those characteristics are to be found in this House every bit as much as in the other House.
No one who takes on the role now can be under any illusion: there will be a statutory duty on them to guarantee the independence of the judiciary and the rule of law. They will be called to account for their conduct of that duty and they will be called to account for any dereliction of it as severely in this House as they would be in the other place. This House is as quick as the other place to see any such dereliction. There is no justification for requiring the Lord Chancellor to be a Member of the House of Lords and there is an overwhelming argument the other way. He must be accountable for his departmental budget, which is more than £3 billion and approaching £4 billion now. He must be accountable to the electorate through this House as every other Minister is. I want to be able to hold the Lord Chancellor to account when a constituent is kept waiting in the courts because a rape case has inconsiderately been listed as a floater. I want to be able to call the Lord Chancellor to account when my local magistrates court is under threat of closure or to raise the thorny issue of anonymity in family court proceedings when legal aid is not available. I cannot do that if he is in the Lords: I should be able to do so. I have
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great respect for my hon. Friend the Minister, but the proper situation is that the Minister in charge should be in this House and a more junior Minister in the Lords.
Mr. Beith: May I suggest that the hon. Lady seek membership of the Constitutional Affairs Committee, which is currently discussing several of the issues she raises? She would then have the opportunity to question the Lord Chancellor on them.
Vera Baird: Sometimes life is simply full of exciting invitations and I shall put that one next to the others. I am grateful for that kind offer.
My last argument is surely the unanswerable reason why the Lord Chancellor should be a Member in this House. The Tory proposal, as well as being impossible, is crazy. It is crazy to suggest that we should legislate to ensure that a Minister cannot be a Member of the House of Commons. It defies all sense. I might add that the Judges Council sees no reason why the Lord Chancellor should be a Member in the Lords rather than in this place. The judges are the very people who might feel undermined if it were necessary to have a Lord Chancellor in the Lords as a guarantee of their independence, so no one else has a leg to stand on in making that argument.
It is not necessary to provide that the Lord Chancellor should be a lawyer. One guesses that the next few post holders are likely to be so: it is a huge step to take. However, the composition of the job will change hugely. The equivalent of the Lord Chancellor in the Scottish Executive is not a lawyer, but she is doing the job very well. Of course, it is important to have close relationships between the Lord Chancellor and the senior judiciary, so that the Secretary of State can be well informed by them, but with that help he or she would assimilate the job in the same way—the example has already been used by my hon. Friend the Minister—as the right hon. Member for Haltemprice and Howden (David Davis) has assimilated all the intricacies of the Serious Organised Crime and Police Bill. He is not a lawyer, but he has managed that. My hon. Friend the Minister frequently shows his sophisticated grasp of complicated legal issues, but he is not a lawyer. One has to work hard, but it can be done. I do not buy the notion that the law is so arcane that no one but a lawyer can ever understand the Department, let alone be able to defend it in Cabinet.
The Law Society has said, and I agree, that requiring that the post holder should be a lawyer could create the perception that the Secretary of State's primary purpose was to protect lawyers, judges and legal interests, rather than the public interest. Lawyers are rarely seen as the voice of the people.
The Tories would require that the post holder should be a lawyer, and a particular kind of lawyer. He should have held high judicial office for two years, which I think means he should have been a High Court judge or more, or should have had at least 12 years' experience under section 91 of the Court and Legal Services Act 1990, which I think means he has to be a High Court advocate. That would restrict the pool of candidates for Lord Chancellor considerably. In any case, that pool is
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occupied by those chosen from the uniform elite whom we hope will be widened by the advent of the judicial appointments commission. To suggest that even as we try to open up the pool to academics, solicitors and the lower judiciary, we should preserve the top man's job for that little phalanx of people who already have higher court advocacy certificates is breathtakingly to miss the point. It simply does not take on board the urgent need for modernisation. I oppose totally both of those proposals and hope that the Government will see them off straight away.
I am pleased that most people now welcome the changes to the judicial appointment process. Such measures are not new. In 1972, a justice committee recommended changes. In 1992, I was privileged to serve on another justice committee, chaired by the eminent Professor Robert Stevens, which recommended change. It is 14 years since Lord Rawlinson proposed in the Courts and Legal Services Act 1990 that there should be change, so the idea is not at all new.
It is wholly inappropriate for a member of the Executive to continue to be responsible for selecting members of the judiciary. That is the real threat to judicial independence. Yes, people have behaved well, but shot through debates on the subject, both here and in the other place, have been comments that individual Lord Chancellors made characteristic appointments. Lord Mackay, it is frequently said, showed his independence of judgment by appointing Stephen Sedley to the High Court bench—a significant left-wing figure. Lord Elwyn-Jones appointed Sir Morris Finer to the High Court bench but did not appoint Lord Donaldson to be Master of the Rolls because in the 1970s national industrial relations court he fell foul of the then Labour Government.
The appointments are made by a party politician, whether he is in the Commons or the Lords, and some of them are good. The independence shown by some of our Lord Chancellors has been good but some of them are bad, and the basis of making those appointments will not do. An individual can make a good or a bad appointment and it is individual instinct to try to be fair or to stick resolutely to political patronage, but the way in which it is being done is unacceptable. Judicial appointments at all levels must be made on merit, on a transparent, fair, efficient and independent recruitment process that draws appointees on merit from the broadest possible field of candidates.
Modern recruitment procedures must be at the forefront, as must be modern recruiters. Of course, the judiciary must be heavily involved, but only within the modern framework of objectivity and neutrality. The judiciary must not dominate the process because it is the homogenous elite that has run the system for so long. It is no joke to say that there has been positive discrimination in favour of public schoolboys and Oxford graduates since appointments began.
I cringe and worry when people talk about the dangers of positive discrimination, as though we had started from some perfect position where people are selected only on merit. The opposite is true. I am not saying that appointments have been universally bad—not a bit of it. Most of them have been very good, but they have been confined to one class, which has repeated
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and repeated and repeated itself by selecting those who resemble it. That is not good enough for a modern and diverse state.
There have not been many serious mistakes. The calibre of the judiciary is generally extremely high—at least in the High Court. There have been mistakes; there have been people who were not up to the job intellectually. There have been people, too, who have no respect for the public who come before them, who think that it is their prerogative to sit in court and demonstrate how clever they are. They do not understand hardship because of their privileged background and demonstrate their cleverness by speaking in an arcane way, to the dismay and misery of people whose future depends on their decisions. Those are bad appointments not because those people are necessarily poor intellectually, but because of those characteristics. Some of those bad appointments would not have slipped through in a proper rigorous procedure.
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