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Mr. A. J. Beith (Berwick-upon-Tweed) (LD):
I am not sure that today's debate is a very good example of the stewardship of time. I like to think that we could
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have more time for these proceedings on the Floor of the House, but with discipline in how efficiently we used it to ensure that a number of important detailed points are considered.
I want mainly to refer to what the Constitutional Affairs Committee has said and done on the matter, and the extent to which our concerns have so far been met. As several hon. Members have said, the problems go back to the way that the matter was introduced, as a back-of-the-envelope decision in a reshuffle. When one is reshuffling one's Ministers, one does not call them in a fortnight before and say, "I'm planning to do this. What do you think? Will you get your officials to do me a paper about it?" The previous Lord Chancellor was no doubt told at 3 o'clock in the afternoon that his services were no longer required and that his advice on the proposals or that of his officials was not needed.
That is a hopeless way to embark on constitutional reform and it was particularly galling for those of us who broadly support the measures that the Government want to take. They managed to convey the impression that the proposals were designed to weaken and politicise the judiciary, which is precisely the reverse of the intention and, I hope, of the effect. The way that the matter was introduced made it much more difficult to argue for the reforms in principle and then get the detail right.
The problems that the Bill is designed to solve are primarily ones of principle and perception, not of practice, except in judicial appointments, to which several references have been made. I welcome the agreement that has now emerged on the necessity for a form of judicial appointments commission. Even in that case, no one is arguing that the most senior judicial appointments in recent years have been other than very good, or that the quality of our judiciary is not envied around the world, but we can still make improvements and there are certainly people who are excluded from the judiciary.
That was the main motivation for changing the system in Scotland, which took on a judicial appointments committee under the guidance of my friend and former parliamentary colleague, the Deputy First Minister, then the Justice Minister, Jim Wallace. That was partly because there was a feeling in many parts of the Scottish legal system that people were overlooked for judicial appointments because they were not part of the Edinburgh mafia, as it tends to be called, and partly because Scotland had a more recent history of political appointments to the judiciary than England and Wales. When we examined the system in an earlier report, we found that it was working reasonably well and were hopeful that an appointments commission, admittedly on the much larger scale required for England and Wales, would be of real benefit.
When the reforms were announced, the Select Committee set about working and reporting on them, building on the work that we had already done on the judicial appointments commission. Most of the Committee's recommendations have been taken up by the Government, some willingly, some reluctantly in response to further pressure in the Lords and some on the basis of defeats in the Lords, a number of which the
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Government do not propose to reverse. Some of what we were saying was bolstered by the concordat between the Lord Chief Justice and the Lord Chancellor, which the hon. and learned Member for Redcar (Vera Baird) said was a successful piece of negotiation. Indeed, it has been referred to with a degree of envy by the Lords Chief Justice of several other countries as an impressive example of how to play one's cards effectively. The Lord Chief Justice did us all a service by getting certain things firmly clarified and accepted on all sides.
Among the things that we said was that the Bill is so important that it should be introduced as draft legislation and given proper consideration. The Government rejected that, but the objective was achieved by the decision of the House of Lords to set up a Select Committee and the decision alongside that, by all parties, to allow the Bill to be carried over into this Session. If that had not happened, it would have been rushed through, if the Lords had agreed at all, in the previous Session, and that would have been bad news. I have to say that I disagreed with my Front-Bench colleagues on that. In their determination to support the proposals, they felt unhappy about supporting the motion to refer the Bill to a Select Committee. The end result of the process is that the Bill has had much better consideration and can still be introduced within a reasonable time.
Another recommendation that we made related to the fact that the court is partly a United Kingdom court and partly the final appeal court in the separate jurisdictions of Scotland and Northern Ireland. None of that had been thought through when the proposals were first produced. I do not think that a moment's consideration had been given to that. We asked many questions and produced a lot of detailed information, and, to be fair to them, the Government responded fully, made significant amendments to the Bill and clarified a number of matters crucial to Scotland and significant also in Northern Ireland.
We also argued not only that supreme court judges should not be in the Lords—that is certainly my view—but that if there was any prospect of retired judges being appointed to the House of Lords while it continues in its present form, either all of them should be so appointed, or none of them. There should be no question of the Government picking those supreme court judges that they liked for preferment to the House of Lords. That would be undesirable and the Government accepted our view on that, too.
We stressed heavily the importance of the court's independence, including its financial independence. We felt that its financial and operational independence needed to be guaranteed and that its budget needed to be secure. We looked at examples, and at Australia in particular, to see how that could be done. To a large extent, that has been accepted. The Department for Constitutional Affairs is still involved, but the chief executive will be an accounting officer in his own right and several detailed improvements have gone some way to meet the Committee's recommendations.
We also felt strongly that the court should not operate until it had its own premises. The problem of perception could not be dealt with by having roughly the same people sitting in the same building—the House of Lords—being served by the same staff, and by saying that some new supreme court had been created. We
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therefore welcome the fact that the Government accepted that the court needs its own building before it can start work properly. My view was that, if everything else could be settled, Middlesex Guildhall was the right place. I disagreed with Lord Bingham on that, but he is getting much of what he wants anyway, so we can reasonable argue with him on the merits of which building to use.
The Committee felt that the Lord Chief Justice should be primarily responsible for discipline and that that should not be a role for the new-style Lord Chancellor or whatever kind of Minister was to come. That, too, has largely been accepted and to a significant extent was sorted out in the concordat.
We strongly recommended an appointments commission, but even we did not anticipate how many versions of judicial appointment would emerge at the end of the process. Effectively, we have a three-tier process—an appointments system for the supreme court, an appointments system for the higher judiciary and an appointments system for all the lower ranks of the judiciary. For the first two, judges are very prominent indeed. Again, the Lord Chief Justice's negotiating skills played a significant part. That will have met, to a degree, the concern of the majority of my Committee that the commission should be chaired by a judge—not a view that I shared. It is a rare occasion on which my view is defeated by a Committee that I chair and a situation that I try at all times to avoid.
The Committee expressed some strong views on the role of Lord Chancellor. We said that part of that role
"is the protection of the judiciary from political pressure in Cabinet and, when necessary, in public."
The previous Lord Chancellor was prepared to act in such a way, and did so on one occasion in front of the Committee. In paragraph 13 of the report, we said:
"There is a radical difference between on the one hand a Lord Chancellor, who as a judge is bound by a judicial oath, who has a special constitutional importance enjoyed by no other member of the Cabinet and who is usually at the end of his career (and thus without temptations associated with possible advancement) and on the other hand a minister who is a full-time politician, who is not bound by any judicial oath and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion."
The Minister smiles—whether he sees himself in that position in future, I do not know.
The Committee felt strongly that such independence was important and we were regularly confirmed in our views by outbursts from Ministers that seemed to some of us to be somewhat threatening towards the judiciary. There was a classic example of that from the previous Home Secretary, who when addressing the Police Federation—a good occasion on which to get a cheer from the gallery—said, "We only want judges who will help us to do our job." That was not a good basis on which to set out the proposals. It further underlined—certainly in my mind—the importance of retaining a Minister who accepted responsibility in Cabinet for sometimes slapping down other Ministers who did not recognise the importance of judicial independence.
We anticipated something that the Government did not anticipate: how important the issue had become. The Government did not seem to think it terribly significant, even as the consultation went on, but it became clear that among members of the judiciary in
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particular the status of Lord Chancellor was regarded as an important safeguard for their position. We recommended that the office of Lord Chancellor should remain, at least for the time being, in its more restricted form—shorn of judicial appointments and, almost certainly, of responsibility for chairing proceedings in the House of Lords. I welcomed the Government's ultimate acceptance of that when it came by way of amendment in the Lords.
I personally do not think that it is essential that the Lord Chancellor should either be in the House of Lords or be a lawyer, but I am still concerned about how we achieve the Committee's objective of ensuring that the Lord Chancellor is not awaiting further political advancement and has the authority to challenge other Ministers on this most fundamental issue. I can think of many people who could do the job who are neither lawyers nor Members of the House of Lords, so I am not especially attracted by the amendments that their lordships passed as a result, to a large extent, of such motivation. Ministers must think further about the matter, so that we can ensure that the person who holds the office of Lord Chancellor and is responsible for relations with the judiciary has the status, authority and independence that he needs to be able to do that job.
I shall mention one other area that has not attracted much attention. The proposals on ecclesiastical appointments arose out of the original intention to remove the Lord Chancellor altogether. At the end of the day, the Government decided to move the appointments to the Crown, thus allowing them to continue to be made by the same people who are making them at the moment in No. 10 Downing street. That reflected the evidence session that the Committee held on the subject. We did not make any recommendations, but we had an interesting evidence session in which much of the weight of the evidence was to the effect, "Do not disturb this system, it is working very well." Those who wanted to change it could not agree on what to change it to. The argument that the matter should be left in the hands of public servants, who were unusually highly commended in the Committee's proceedings, clearly weighed with the Government.
On a large number of issues, the Committee's work was well justified, because it influenced the course of events. Many of our recommendations have been accepted, either willingly or slightly unwillingly by the Government, and we shall consider what happens in Standing Committee with the hope of reporting to the House prior to Report any further conclusions that we might reach.
8.26 pm
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