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Mr. Grieve: As I have said on previous occasions, I worry far more about the quality of appointments to the Crown court bench than to the High Court and above. The irony is that at present those appointments have, on the face of it, little or no political input and are likely to have little political input, because they are carried out within the Department. Certainly if the situation is improved by a judicial appointments commission, I shall be delighted. There may be more criticism of those appointments than higher up the hierarchy.
Vera Baird: There is certainly a qualitative difference between some of the people appointed to the Crown court bench and the usually very good people who are appointed to the High Court. None the less, when we talk about the calibre of appointees, we tend to mean intellectual capacity. Of course that is hugely important, but so, too, is being considerate to the public and having the understanding necessary to explain at the highest levels of our court system in plain English what one is discussing and, when addressing someone's counsel, trying to speak not in code, legalese or Latin, but in a way that the people who are paying for it and are entitled to it can understand. Having an understanding of that aspect of the judiciary job is not as universally available as good intellectual calibre, yet it is certainly a key skill. There have been some notable failures of that kind, while some potentially good appointments have stalled through the prejudice implicit in the current appointments system.
The right hon. Member for Suffolk, Coastal says that nothing in the Bill is urgent. I ask him to reconsider. Senior appointments—High Court and above—tend to come from QCs. I want to tell the right hon. Gentleman some of the things that Sir Colin Campbell and his commissioners unearthed in the process for appointing QCs. There are what we call secret soundings that are now not so secret; Sir Colin Campbell can get hold of them. Indeed, people who have been refused appointment to silk—a necessary gateway to achieving higher judicial appointment—can ask for feedback on what has been said about them.
What about the woman who found that a factor sufficient to merit inclusion in the feedback she was given was that one of the higher judiciary had referred
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to her having poor dress sense? Is that a qualification for becoming a QC? Another woman was told that she had done something lamentable in court. In the feedback interview, she said that she had not done it and that the claim was not true. The response was, "Well, gossip creeps in sometimes." That is not very satisfactory.
A woman was told that an affair that she had had 10 years before was still talked about by the judiciary and that she would not be welcome. They should not have been talking about the affair in the first place, but to talk about it 10 years later and to hold it against her as a reason for not appointing her was utterly absurd. Indeed, it is invidious. In the secret soundings, someone's marital status was said to be a problem— Sir Colin Campbell is discreet about exactly what that was. Someone else was described by a judge as not a leader of the profession, so they should not be appointed. What on earth does that mean? What we think of as a leader may not be what someone else thinks. If one does not obtain silk, one cannot get on to the High Court bench. Even if one manages to get through the gateway of discrimination once, one has to face it again from the same people next time around.
Mr. Garnier: I am sure that those examples are interesting. Such cases are bad and ought not to have happened. We can all agree about that, but clearly such cases are not in the majority, bad as they are individually. I am concerned about the future. By and large, we agree that the judicial appointments commission is a good thing, although we need to worry about the detail. Can the hon. and learned Lady move away from the points that she was making about previous mistakes or bad policies and urge us to support the Bill in relation to the question of the Lord Chancellor or the supreme court? I fully sympathise with her concerns, but they will not help us to be persuaded about the overall merits of the Bill.
Vera Baird: I shudder at the utter complacency of that intervention, which suggests that those atrocities of injustice do not merit being dwelt on and that one should hurry up and get on with something else. I know that the hon. and learned Gentleman comes from a party that does not welcome women to its higher roles, but it is really time that the Conservatives appreciated the need to come into the modern era and to understand that if they—like this system—sanction discrimination against women, not many women will vote for them.
When such things are known about how the process works, it is not surprising that many people hide their merits under a bushel. It is pretty well known that it is much harder for women, and certainly much harder for people from ethnic minorities, to get into the judiciary. Surely, it is obvious that the wider the pool of qualified people, the better is the calibre of the appointees.
I have heard it argued, too—in fact, I am vaguely surprised that the hon. and learned Member for Harborough (Mr. Garnier) has not said it—that women have only fairly recently come to the Bar, so we cannot expect many of them to have filtered through to the top. That is certainly the Tory argument in the Lords to try to justify what occurs because of the discrimination to which I have referred. Women have been allowed at the Bar since 1922, so someone with 70 years' call could be present at the Bar at the moment.
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In 1992, when I was on the committee for justice, there were disproportionately too few women in high office for the number of women who had 15 to 20 years' call at the Bar then, and we are now 12 years on. So that is not an argument either—sheer discrimination is the argument, and I make no bones about saying that. I know senior people at the Bar who are black, who are female and who are gay who are better in many ways than some of the people who are currently on the bench, but they have not been put on to the bench. That is bound to be so, as long as there is discrimination.
I applaud the introduction of a system that has every hope of finding the means of fairer selection, to draw from the array of diverse talent that is available and increase the calibre of our already respected judiciary. That is the last point that I want to make about the urgency of the judicial appointments commission, given what has been said by the Opposition. Our judiciary is very good, but we must make it better and this is how we can do so. At last, we might start to have selection for the judiciary on merit.
I strongly support the Government's decision to establish a supreme court separate from the legislature and in place of the Appellate Committee of the House of Lords. It is undesirable for members of the highest court in the land to serve as members of the legislature. The Joint Committee on Human Rights said that the creation of the new supreme court and the disqualification of judges from sitting in Parliament makes it less likely that violations of the European convention will occur in practice. The hon. Member for Beaconsfield (Mr. Grieve) is right to say that there is controversy in legal circles about whether there is any problem under the convention, but surely the Committee is right to suggest that such violations would be less likely.
Professor Jeffrey Jowell has said that the EU would not now accept for admission a nation that had its senior judges in its legislature. It is a marker of how far out of step we are with international thinking that we have allowed that obvious anomaly to linger so long. No Commonwealth country has adopted that curious structure, although many base their legal systems on ours. Canada, Australia, New Zealand and South Africa do not have working judges in their legislatures. The hon. and learned Member for Harborough referred to that aspect of the Bill as intellectual guff, suggesting that we should stand our individualistic ground and not be pulled into some sort of cheap version of a constitution by trying to resemble other people.
Vera Baird: Of course I will give the hon. and learned Gentleman a chance.
Mr. Garnier:
I thank the hon. and learned Lady for politely giving way. I am prepared to withstand her insults; I am prepared to withstand her arguments; but I am not prepared to accept her utter failure to understand that what I was talking about in relation to intellectual guff were the arguments proposed by the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley), who is no longer here. The hon. and learned
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Lady may make her arguments if she wishes, but will she please base them on what I said, not on what she thinks I said or on what she likes to assume all Tories, Conservatives or men say. It would have made for a better argument if she had listened to what I said, rather to what she thinks I said.
Vera Baird: The hon. and learned Gentleman must grow up or get out of the kitchen. He said that moving towards other constitutions by removing the judiciary from the legislature, as proposed by my hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley), was intellectual guff. I do not mind learning from Canada, Australia, South Africa or any other Commonwealth jurisdiction. The hon. and learned Gentleman really must learn to control his words.
The supreme court is a very good and important development. The ending of the system whereby members of the senior judiciary have seats in the Lords requires the establishment of an effective channel of communication between the judiciary and the legislature. There may well be times when the legislature wants directly to benefit from the experience and expertise of the judiciary.
I support clause 6, which will enable the chief justice or his equivalent in Scotland and Northern Ireland to lay written representations before Parliament, and a parliamentary Committee through which the judiciary can maintain a dialogue with Parliament might also be appropriate. The Constitutional Affairs Committee has furthered such relationships. Its Chairman, the right hon. Member for Berwick-upon-Tweed (Mr. Beith), enjoys good relationships with members of the judiciary, who feel free to give evidence and make their views felt. I do not regard that as a problem, but it necessary to ensure that those channels exist now that the Law Lords will disappear. That change is good constitutionally, and good, rational channels of communication can be set up.
There are also practical reasons for such a change. First, as the senior Law Lord has said, it makes the position much clearer, particularly for the public who find it difficult to understand and can muddle the role of the House of Lords as part of the legislature and as a court. Let us consider the Hunting Act 2004 for a moment. Deciding whether the Parliament Act 1949, by which the Act was passed, is lawful will ultimately be decided by the House of Lords. Do people understand that that judgment will be made by people who could have voted against the Hunting Bill in the first place because they technically remain members of the House of Lords? Let us consider how undesirable and confused that position is.
Let me give two practical bits of evidence to show why the change is important. All the lawyers present and many others will know about the doctrine in Pepper v. Hart, which allows the courts to look at Hansard to understand the purpose of any legislation if it is ambiguous. I was involved in a House of Lords case in which a colleague and I were trying to persuade the House of Lords to consider Pepper v. Hart, but after suitable argument the House of Lords declined to do so. Those involved did not want to be influenced in their interpretation by what appeared in Hansard, but three of them were there when it was said, taking on the role
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of helping to sculpt the legislation, so presumably they were taking it seriously. Does that not make a pretty powerful point?
In a further House of Lords case in which I was involved the then senior Law Lord came in after the luncheon adjournment and said that he had to make it clear that he had been lobbied on how he should vote on a part of a certain Bill. Just before lunch, I was taking their lordships through that Bill to try to make a point that the legislative thinking in the Act in force must have been A because the new Bill was carrying on that line. He was considering a Bill as a guide to interpreting another Act, while being lobbied politically to vote against it. That is an extraordinarily complicated and tortuous position for anyone to be in. Of course, the Law Lords can set aside what they hear in one role and compartmentalise their thinking—frankly, there are such good people in the House of Lords—but there is a danger that they can over-compensate for having heard what they feel they should not have heard.
It is an extraordinarily unhappy situation in a whole variety of ways. I agree thoroughly with the senior Law Lord, Lord Bingham, that a modern, clear and quite separate supreme court is very important. About half the Law Lords feel unhappy to be in the Lords now. They think that it is an inappropriate location and they will not speak at all in debates. They therefore play no useful role.
The House of Lords is an excellent judicial tribunal. It shows every sign of wanting to get to the right result. It does not, as many other courts do, merely play and argue with counsel; it argues among itself and is truly intellectually stimulated by an argument. This court can play a great role in our democracy whether it agrees with the Government or, as it has done recently, disagrees with them. It should be freed and clearly seen to be having that role, with due standing, its own building and due respect for its calibre being judged on the merits.
I support Lord Bingham, Dame Brenda Hale and Lord Steyn who are in favour of the supreme court. I support Lord Woolf, who in evidence to the Select Committee about the Lord Chancellor as now configured, said:
"I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or any particular title to enable him to exercise these functions."
I agree with most of the people who have expressed support for the judicial appointments commission. This Bill was rightly described by the Lord Chief Justice in the other place as a
"it will rank in importance with the great constitutional instruments of the past".—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 759.]
7.51 pm
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