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Mr. Douglas Hogg (Sleaford and North Hykeham) (Con):
I sympathise with the hon. and learned Member for Redcar (Vera Baird). Her voice is clearly failing her, and I sympathise, not least because I am in a similar position. I am rather glad that this is not one of those occasionsat least, I fancy notwhen I shall have to shout down hon. Members, on either side of the House.
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There are clearly aspects of the Bill that can properly be supported. It would be rather surprising if that were not the case. It is not, in fact, the Bill that the Government first introduced in the other place. Indeed, I think that some 400 amendments were made there. I can therefore say that within this Bill, there are substantial aspects with which we can associate ourselves.
The reasoned amendment moved by my hon. Friend the Member for Beaconsfield (Mr. Grieve) seems to encapsulate the criticism of the Bill remarkably well. It was echoed by my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer). I happen to think that the Bill is largely unnecessary; it is most certainly bureaucratic and expensive.
I want to say something about the Lord Chancellor, something about the supreme court, something about the establishment of the judicial appointments commission and, brieflyMr. Speaker made it plain that we could do thissomething about the timetable motion.
I do not know whether I have to declare an interest in that both my father and grandfather were Lord Chancellors. I certainly accept that the role of the Lord Chancellor has changed and is bound to change to take account of the change in circumstances. The role and office cannot be frozen in aspic. There have, in fact, been huge changes since my grandfather first came to this House in the 1920s and shortly afterwards went to the Lords as Lord Chancellor. I suppose that the most important change has been the desire for much greater openness than was then the case. MoreoverI think that this was important for the role of the Lord Chancellor in connection with appointmentsthere were far fewer judicial appointments in those days. I think that in my grandfather's day the King's bench division had 12 members; it has nearer 100 now. It is also true that in those days, the Lord Chancellor knew, or had access to those who knew, most of the people who were likely to be applicants for judicial office.
The legal profession is now not very well represented in this place or in the other place. There are not many practising barristers in the House, and most of those who practiseI am one suchpractise largely at the criminal Bar. It is therefore increasingly difficult for Governments to find either Attorneys-General or Lord Chancellors who can be appointed from Members who have served in this place. However, I happen to think that there are substantial advantages in having as one's Lord Chancellor or Attorney-General someone who has served in this place.
I certainly accept that a number of the roles of the Lord Chancellor must change. I shall come to the judicial appointments commission, but I do not think that the Lord Chancellor should be responsible for appointments to judicial office. It would be a serious mistake, as a general proposition, for Lord Chancellors to sit judicially, although it is true that my father sat judicially on a number of occasions, and attached a very high importance to that role. He was probably wrong, but his judgments were, on the whole, rather good ones.
That point does not address the role of the Lord Chancellor. That role is extremely important because over 10 yearsin fact, more than thatthere has been a whole flood of Home Office-driven legislation that has
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had a great impact on the rights and liberties of the citizen. I do not want to go over disputed ground about the previous Home Secretary. I regarded him, and I said so many times in this place, as a deeply illiberal Home Secretary. Much of the Home Office legislation that we are currently contemplating, and that we have contemplated in the lifetime of this Parliament, has been deeply illiberal and deeply authoritarian. I have opposed it and I deplore it including, incidentally, the Identity Cards Bill, on which I had the misfortune to disagree with my own party's line.
It is of critical importance that within the Government, there should be another source of influence and authority to set against the policies of the Home Office. If I ask myself where that person can be found, the answer is that he or she has to be found within the office of the Lord Chancellor. I cannot easily identify any other source of comparable influence and power. It is important therefore that the person who carries out the functions of the Lord Chancellor should have as much status as we can give him or her, and as much independence as well.
I understand the argument to the effect that it is a good thing for senior Secretaries of State to be in this place. In principle, I agree with that. However, I ask myself a different question: what is the likely relationship between the Secretary of State for Constitutional Affairs sitting in this House and the Home Secretary? The truth is that the Home Secretary will always prevail.
When I look back, however, on the Lord Chancellors whom I have known or have been faintly acquainted with during my political life, who sat in another place, that has not been the case. On the Labour side, there were Lord Gardiner, Lord Elwyn-Jones and, of course, the previous occupant, Lord Irvine of Lairg. On the Conservative sidejust to cite a fewthere were Lord Kilmuir, Lord Dilhorne, Lord Mackay and, of course, my father. All these were people of a very considerable authority, which they could set against the power of the Home Secretary. Most of the debatesthis goes to the question of accountabilityoccur within the Government, not on the Floor of either Chamber.
My worry is that if we insist on the purist doctrine that Secretaries of State should sit in this House, we could be dealing with a Minister on the maketo adopt the phrase used by my hon. Friend the Member for Beaconsfield. There are huge advantages to there being a requirement for the Lord Chancellor to be a lawyer and a Member of the other place who is at the end of his or her political or judicial life, because he or she will thus have nothing to gain and nothing to fear.
Sir Patrick Cormack:
Is there not rather more to this than my right hon. and learned Friend suggests? There is not only the question of duelling with the Home
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Secretary when necessary; the Lord Chancellor is someone who can stand up to the Prime Minister, which is the most important thing of all.
Mr. Hogg: My hon. Friend is absolutely right. Not one of the Lord Chancellors whom I cited would have been described as a cheerful chappie. We do not want Lord Chancellors who are cheerful chappies, but people who bring real authority, pre-eminence and distinction to the role, because only in that way can an overbearing Home Secretary be faced down.
I hope that the House, in its Committee form, will insist that the Lord Chancellor be a lawyer, that the role of the Secretary of State for Constitutional Affairs should always be designated as one that the Lord Chancellor should perform, and that the Lord Chancellor should be a Member of the other place, so that he or she will by then be beyond fear or favour. We need to make every attempt to reinforce the status of the Lord Chancellor.
Like so much done by the Government, the words "supreme court" mislead. The title suggests a genuine separation of powers, and in particular, although this is not stated, the power to strike down primary legislation. As a general propositionwe will see what happens during the challenge to the Hunting Act 2004the supreme court will not have the power to strike down primary legislation. In truth, the supreme court as described in the Bill will largely be the Judicial Committee as it now sits, but sitting in a different, more expensive place and underpinned by an extremely expensive infrastructure. As my right hon. Friend the Member for Suffolk, Coastal implied, if it is not broke, why seek to mend it? There is no overwhelming requirement for change, so I would not change the structure.
I regret the prohibition on members of the supreme court from speaking in the other place, although I am assuming that we will not have a wholly reformed other place. I hesitate to say this in the presence of my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack), but I am in favour of a wholly or largely elected second chamber.
Within the parameters of the other place as it now is, I want members of the supreme court to be able to speak. I appreciate that Lord Bingham has constrained the circumstances in which such people should speak, and that there is a division of opinion about that. It is certainly the case that the Law Lords should be careful not to express themselves in a partisan manner. They must always express themselves temperately and bear in mind the fact that they might have to adjudicate on matters that are discussed in the other place.
Of all those in this House or in the other place with judicial experience, the Law Lords have the most current expertise across the broad spectrum of legal issues that Parliament must discuss, ranging from the complex commercial questions to more humdrum issues of family or criminal law. They have knowledge of great constitutional issues, such as the impact of the European
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convention on human rights on the way in which the courts operate. The truth is that the Law Lords have greater current expertise than anyone else, because as I have already said, most hon. Members who are practising barristers or solicitors practise at the criminal Bar. Although there are competent barristers in the other place, they tend to have rather specialised practices. For example, Lord Grabiner, for whom I have high regard, has a specialised commercial practice. Of course if we rely on ex-Law Lords, we are dealing with individuals with experience that is not quite as current as one might wish. I greatly regret the prohibition on justices of the supreme court from speaking in the other place, and I hope that the House, in its Committee form, will reconsider that.
I turn to the judicial appointments commission. The role of appointment should not be performed by the Lord Chancellor or his officials, although I accept that there was a jolly good case for that in the days when the Lord Chancellor knew most of the applicants, or could at least have a private word with the heads of division who did. However, those days have gone and one cannot hark back to them. I agree with the principle of the judicial appointments commission. It is undesirable for the Lord Chancellor's officials to perform the functions that were historically performed by the Lord Chancellor, because they are not well placed to determine the merits of a, b or c. However, we have chosen one of the most remarkably bureaucratic and complicated ways of making appointments that I have ever read. There is a powerful case for depriving the Ministeror Lord Chancellorof any residual power and giving the power exclusively to the commission, but that is a matter for debate.
I have two real worries about the role of the ombudsman. I doubt whether people who are dissatisfied with the decisions of the judicial appointments commission should have the right to apply to an ombudsman for remedy. I remark in passing that Back Benchers with desires that remain unfulfilled, or Ministers who are disgruntled because they have been passed over or sackedI am casting no personal aspersions about any hon. Member in the Chamberdo not have the right to appeal to an ombudsman.
Let us consider what is being suggested. If people were to make a complaint about process, I wonder whether the cost and inconvenience of the ombudsman would be proportionate. Indeed, the matter could probably be raised with the parliamentary ombudsman as is. Is it suggested that the ombudsman should be able to express a view on the merits of an appointment? At that point one enters a difficult area, because when one makes appointments of any kind, one's judgment is often subjective. One might have real doubts about a person's integrity, competence, good manners or judicial temperament. It might be difficult to make such subjective judgments stand up evidentially, but they may none the less be real and well founded. I fear that if we set up a process that allows people to challenge the merits of judicial appointment, we will find ourselves landed with many appointees who should not be appointed, because the commission will play for safety and rely only on reasons that can be evidenced.
The question of merit and diversity is related to that matter, and although it is a small point, it causes me considerable concern. I entirely endorse a point made by
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my hon. Friend the Member for Beaconsfield: merit should be the only criterion for appointments. By all means let us enlarge the pool as much as possible. I agree that it has been artificially constrained for many years. We should have a wide pool, but by goodness, let us stick to the criterion of merit and no other. The power that the Bill gives the Minister, or Lord Chancellor, to give guidancefor example as to diversitycould be misused.
As to disciplinary functions, this is an enabling Bill. It enables the Minister, or Lord Chancellor, to set out processes for disciplining members of the judiciary. Again I preach caution; we need to look at this more closely in Committee. It is perfectly truethe hon. and learned Member for Redcar knows this as well as I dothat historically there have been some pretty eccentric folk on the bench. In my professional lifetime I have known some, and even since I went back to the Bar in 1997 I have come across one or two very odd figures who probably should not be there. I hope that the judicial appointments commission will prevent that from happening. In any event, peer pressure and the word from the senior judiciary can be brought to bear.
I would, however, be very sorry if a disciplinary process curbed the independence of the judiciary. The hon. and learned Lady adduced from one Minister I forget which onethe fact that each year there are between 1,000 and 1,200 complaints about the judiciary. We all know from our constituency experience that litigants, whether male or female, are frequently dissatisfied by the result. Very often they express their dissatisfaction by saying, "It was unfair," or, "He"or she"behaved badly. It was judicial misconduct." I do not want to see the judiciary cowed in any way. We look to it, in part at least, to defend the citizen against the over-mighty Government. Let us then be cautious about the disciplinary process.
I turn briefly to the timetable. Mr. Speaker was good enough to say that we could speak about it, provided that we did not go on too longand my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and my right hon. Friend the Member for Suffolk, Coastal have made the points that I would have made. This is a very important Bill. On the Floor of the House, where these things are traditionally discussed, we will be able to discuss only fragments of the Bill, and those fragments have been selected for us not by discussion between Front-Bench Members, but by the proposal of Ministers.
I acquit the Under-Secretary of State of responsibility. I suppose that he did not know; it was not his decision. [Interruption.] No, I see, it was not his decision. I do not blame him; he is only an Under-Secretary. However, it is not right. If the proceedings were to be timetabled, there ought to have been discussion between Front-Bench Members of all the major parties and the minority parties. The House is being impoverished by the process. Not only that, but democracy itself is being impoverished. I hope that the House will rally, and vote, against the timetable motion.
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