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The Lord Chancellor: My Lords, the announcement on 12th June in substance said that we wished to move to a supreme court and have an independent appointments commission for the appointment of judges in England and Wales. That remains our policy. As was pointed out by the noble Lord, Lord Strathclyde, a detailed series of consultation papers deals with that. We want to hear people's views on the 72 questions that he very conscientiously counted in the consultation papers. The right course is for us to set clearly the policy outcomes to which we aspire, and then have full consultation on the detail of how we do it. That is the way in which we are proceeding.
The Lord Chancellor: No, my Lords, it can be done without amendment to the Act of Union. The critical point in relation to the Act of Union is that no appeal from Scotland should go to an English court. Therefore, we make it clear in the consultation papers that the supreme court must be a United Kingdom court, not an English court.
Earl Russell: My Lords, does the noble and learned Lord agree that the placing of the supreme court in Parliament better fits the circumstances of 1295 than of 1995, and that a good deal of water has flowed under the bridge since then? Perhaps I may join in the general welcome that has been extended from these Benches, in particular to what he has said about diversity. Does he agree that the noble Lord, Lord Strathclyde, in setting diversity and merit in opposition, is offending against the law of averages? Perhaps I may ask him in that context whether he will study the report from the Young Solicitors Group, which was mentioned briefly in The Times last Monday. It drew attention to the difficulties faced by married women returning to the profession because of
The Lord Chancellor: My Lords, I am grateful to the noble Earl for his support. I always agree with his historical analyses, because he is much cleverer than me. I do not know which laws the noble Lord, Lord Strathclyde, was offending in his remarks, because it was difficult to determine what he was opposing and what he was not. I did not take him to be opposing greater diversity so long as merit was also the touchstone of appointment. I see that he is nodding at that. It might have been that the noble Earl was being unfair to noble Lord, Lord Strathclyde.
In conclusion, I was aware of the newspaper report about young solicitors and what happens during the course of their careers. A critical point that has often been made is that people entering the profession have become much more diverse as time has gone on. It is frequently asked why one does not merely allow that to filter through to the time when appointments are made. If one looks at what happens to someone during their professional life, the attrition rate for women, for example, is much higher than it is for men. If one were to approach it just on that basis, one would not see that diversity. We should also remember that appointments need at all times to be made on merit, as perhaps we would all desire.
Lord Borrie: My Lords, my noble and learned friend has implied just now, as he has done on previous occasions, that as individuals set out on their professional life in their 20s, there is a good proportion of women and ethnic minorities, but that they do not survive the 20 or 30 years necessary to get the experience that is traditionally thought to be desirable for appointment as a judge. I understand that certain solutions are suggested in the paper that my noble and learned friend has produced today, including the alternative career path. Perhaps I may ask him whether it is not possible for my noble and learned friend himself to persuade the professional bodies to ensure that solicitors' practices and chambers at the Bar adopt the kind of approach that the noble Earl, Lord Russell, has describednamely, more family-friendly policiesso that throughout the normal professional experience of solicitors and barristers, women and ethnic minorities do not fall by the wayside, as has been happening only too frequently.
In so far as a new career path is introduced, and people are appointed as judges at a relatively young age on a part-time or temporary basis, would the noble and learned Lord the Lord Chancellor ensure that the professions get rid of whatever rules and conventions now exist that say that once one becomes a judge, one may not return to private practice?
The Lord Chancellor: My Lords, I agree with my noble friend that whatever the level of diversity at the entry point into the profession, it decreases as one goes on. It is important that one tries to remedy that as much as possible in the appointment of judges. I agree
Lord Alexander of Weedon: My Lords, I return to the question of judicial independence. As the noble and learned Lord the Lord Chancellor has rightly stressed, the crucial, ultimate step will be the appointment of the judges. That will be made by the Minister. That Minister is currently the noble and learned Lord the Lord Chancellor. That Minister therefore has a recognised legal qualification that makes him competent to take those decisions. Will it be a requirement that the appointing Minister will be similarly legally qualified?
The Lord Chancellor: My Lords, That is not stated in the consultation papers one way or the other. The proposal that, subject to consultation, is most backed in the consultation paper about the independent appointments commission is that it should put one name to the Minister to select or reject. On the question of whether the Minister needs to be a lawyer or not in defending judicial independence, when that is his role, Ministers make a whole range of appointments, not just in the legal field, but in other fields as well. They do not normally need to have the qualification relevant to that particular appointment, but I believe that they do need to have enough stature to deal with the matter and a proper understanding of the constitutional position. That is why the paper is right to say that that should be enshrined in statute. It does not follow that the holder of the role of Secretary of State for Constitutional Affairs needs to be a lawyer.
The Lord Bishop of Chester: My Lords, perhaps I may risk a remark from these Benches. I am conscious of a remark by St Paul, who began one of his passages with, "I speak as a fool". One wishes to support the general principles which underlie the proposals. There is also a nagging sense, not only on the Conservative Benches, that things may be lost without us quite realising it. It may well be that the fact that the present arrangements have existed for so long has contributed to the particular quality of our democracy and the character of Parliament. Parliament has been enhanced precisely by the presence of a high judiciary.
I wonder whether politics will enter that process whether we like it or not. One has seen it in America in appointments to the Supreme Court. One is anxious that the Secretary of State for Constitutional Affairs might end up a more political figure than the Lord Chancellor has been. The Lord Chancellor has been protected from that precisely because of his primarily judicial role and by the fact that he has been able to insist on sitting as a judge. How can we ensure that the long arm of politics will not find its way into that process and influence appointments of those who
The Lord Chancellor: My Lords, I agree with the right reverend Prelate that we should be sure that we do not lose the good bits of the current system. One of the good bits is the fact that judicial independence has been assured. That has in part been because of the role of the Lord Chancellor in defending judicial independence. That is why we have proposed specifically that the responsibility for ensuring judicial independence should be reflected in statute. That way, what must be defended and who it is defended by are clear. Having said that, the position is strengthened. The role of the independent judiciary, which has behaved with complete independence in the past, is assured by a system that insulates them from politicians in a more effective way than is the position at the moment.
Baroness Howe of Idlicote: My Lords, while I welcome many of the changes, however rushed or otherwise the appointments made in the reshuffle may have been, there is no doubt whatsoever that there have been plenty of reports and plenty of ideas circulating for very many years. Not least, two committees of Justice, over a period of 10 years, have recommended just that sort of approach. I am sure that many of us welcome the proposals for diversity, in particular, and the flexibility of some of the arrangements that are suggested for the appointments commission in choosing new judges. One particular issue worries me. I share the concerns expressed about the fact that the Law Lords will not sit in this House. I do not think that I heard an answer to a question that was asked. If they must be outside when the supreme court is sitting, how are they going to get back in, because we would need them all? Is it to be via the House of Lords Appointments Commission, in the same way as most other Members of the House of Lords will be proposed?
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