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Lord Lester of Herne Hill rose to ask Her Majesty's Government how their proposals to create a supreme court of the United Kingdom and a judicial appointments commission will secure the independence of the judiciary.
The noble Lord said: My Lords, the debate enables the House to discuss how the administration of justice may be enhanced in the light of the Government's proposals for reform. Judicial independence is, of course, not the only requirement for a proper system of justice but it is essential to the rule of law. I am grateful to the many eminent and learned noble Lords who have stayed to take part in this debate on a matter of great importance, not only to judges and lawyers but to everyone.
We are fortunate to live in a democratic society governed under the rule of law, but changing social needs require changes to our governing system, including the judiciary. Reforms must not only be well
The sudden departure of the noble and learned Lord, Lord Irvine of Lairg, from the Government leaves a worryingly unbalanced Cabinet. He was a powerful counterweight to a populist Home Secretary whose defining characteristics include a marked dislike of the judiciary when it curbs the misuse of his public powers. We regretted the stubborn refusal of the noble and learned Lord, Lord Irvine, to recognise the need to make the reforms now proposed, but that does not diminish his achievements as Lord Chancellor, most notably the Human Rights Act.
The departure of the noble and learned Lord, Lord Irvine, leaves behind a Government with no one of his stature, authority and sometimes awkward independence to act as an effective counterweight to the combined weight of the Prime Minister's Office, the Cabinet Office and the Home Office. It is a vacuum that cannot be filled merely by imposing a statutory duty on a Minister to promote judicial independence, a duty that should surely apply to the entire Government. In any event, it is essential for the judges to speak for themselves when it becomes necessary to protect the administration of justice.
What matters more than any formal and unenforceable statutory duty is the culture of mutual confidence, trust and respect between the judiciary and the executive and between each branch of government and the public. However sensible the proposals for institutional reform may be, what matters at least as much are those chosen to make them work. The botched way in which the Government initially mishandled their proposed reforms has undoubtedly undermined public and judicial confidence in the reform proposals. It is therefore welcome news that the noble and learned Lord, Lord Woolf, has decided to continue to serve as Lord Chief Justice of England and Wales to seek to ensure that judicial independence will be secured and that the quality of our judicial system will be preserved and improved.
The consultation papers do not refer to the role of the Attorney-General. To strengthen the rule of law, he should be entitled as of right to attend all meetings of the Cabinet and Cabinet Committees to advise authoritatively on matters of law and legal public policy. The Prime Minister might do well to follow Australia's example and end the convention excluding the Attorney-General from membership of the Cabinet. The Attorney-General is surely the appropriate Minister to be consulted about judicial appointments for England and Wales.
We support the Government's proposals to create a judicial appointments commission; to replace the Law Lords with a supreme court of the entire United Kingdom; to create a more diverse judiciary; and to end government patronage in the appointment of
We shall miss the Law Lords' contribution to our Committee work and to debates, but their role has become increasingly constrained by the need to avoid possible conflicts of interest. Their proper province is surely judicial rather than political. The judges must be consulted about issues of legal public policy, but they should not be legislators.
Moving the supreme court to a suitable home will overcome the acute shortage of space that now prevents the Law Lords having sufficient support staff and the public having proper facilities. The needs of the senior judiciary and the public should no longer be cramped by the shortage of proper accommodation in this building.
It is also surely right that the senior judiciary should be drawn from a more diverse pool of well qualified candidates than at present in terms of gender, ethnic spread and range of experience and practice. By "well qualified" I mean not only intellectually well qualified but well qualified by experience and personality to act independently and impartially.
The quality of independence is well provided by judges drawn from the independent Bar, for the Bar is a profession of self-governing and inner-directed individuals, trained to be robustly independent. But the Bar still lacks diversity and it has no monopoly for providing potential judges with such qualities. Judges and barristers need to recognise that experience of advocacy is not a necessary condition for a good judge. The qualities needed can be well provided on the basis of wider professional experience beyond the Bar, including solicitors, those who have chaired tribunals or who have been distinguished academics and civil servants.
Judicial independence involves the individual independence of a judge, reflected in security of tenure, and the institutional independence of the court over which the judge presides, embodied in the institutional relationships between the executive and legislative branches of government. This does not mean that a judge should be unaccountable, or that there should be no independent informed evaluation of the judge's performance. But it does mean that the institutional architecture must be well designed to appoint judges of proven experience, ability and independence, and to promote the culture of mutual confidence, trust and respect to which I have referred.
The way in which members of the commission are appointed is crucial. The commission need not be chaired by a judge and it must not be dominated by judges since that would lead to a form of judicial corporatism, but it needs to include a significant proportion of senior judges, and to consult the judiciary in its work. It must also be seen to be manifestly independent, and the criteria of procedures for appointment must be well designed and transparent.
I would strongly oppose the suggestion in the consultation paper that the recommending body for appointing commission members should be chaired by the permanent secretary of the Department for Constitutional Affairs rather than someone wholly independent of the Government. The issue of budgetary and staffing control is important. In my view, the Supreme Court of the United Kingdom, like the High Court of Australia and the American federal judiciary, should control its own budget and be responsible for court staffing and services. There is a strong case for that to be done more generally. That is a controversial issue not explored in the consultation paper, but first raised many years ago by the noble and learned Lord, Lord Browne-Wilkinson.
Lord Borrie: My Lords, I confine myself to three points. The first is that the case for changing our system of judicial appointments was much stronger in the early part of the last century than it is now. Lord Chancellor Halsbury, who served in that office for a total of 16 years, made some disgraceful appointments, particularly MPs of doubtful quality, to be judges. Then there was the apparent convention in the early part of the last century that, when the office of Lord Chief Justice fell vacant, the current Attorney-General should be entitled to succeed. In 1922, the former Attorney-General Gordon Hewart was appointed Lord Chief Justice. He was to remain in that post for 18 years and was described by the reputable legal historian Professor Heuston as,
Political appointments were common in England over a long period, and it is to the credit of more recent Lord Chancellors, including the last twothe noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairgthat their appointments were impeccable and based solely on merit and high quality.
My second point is that there remains a case today for change along the lines that the Government have proposed. The present system, in which the whole process of appointment is in the hands of a government Minister, has been abused in the past, is anomalous, and is increasingly inappropriate when judges have to adjudicate more and more on the lawfulness of the actions of the executive. Appointment by, or on the recommendationperhaps depending on the grade of judgeof an independent, well-balanced judicial appointments commission of the kind proposed, with the commission itself appointed by patently independent persons, is surely the right way forward.
The noble Lord, Lord Lester of Herne Hill, with whose remarks I largely agreed in their detail, is surely right to ask how that system will secure the independence of the judiciary. To my mind, appointment to the judiciary by, or on the recommendation of, such a commission, combined with a continuation of the very substantial security of tenure that High Court judges and, to a lesser extent, circuit judges enjoy, will be the key factors in ensuring judicial independence.
My third point is that I welcome the Government's decision and desire to open up the possibility of appointment to candidates from a wider range of social background. However, the reassurance in paragraph 28 of the White Paper that the fundamental principle must be selection on merit is absolutely vital. At the moment, we have a situation in which about half the numbers of young people who become barristers or solicitors are women. Quite a reasonable proportion of minority ethnic groups has been joining the legal profession but, unfortunately, too many women and too many from those groups fall by the wayside before they have acquired the experience needed for appointment to the Bench.
I feel sure that both the professions could do a great deal more to ensure that work arrangements are more flexible and family friendly, so that there will be a wider and diverse pool from which judges of the future can be selected. I am not sure that I fully understand the rather complex paragraphs 93 to 97 of the White Paper, which deal with how diversity can be achieved. My route, which I have suggested depends a great deal on the profession, will result in a more diverse judiciary than the appointment of younger people with limited experience of the law and of life, which seems to be suggested by the Government.
I want to focus essentially on the critical issue which the noble Lord, Lord Lester, highlighted, of the independence of the judiciary. I find myself in a quandary here. For 30 years, Justice has argued for an independent judicial advisory committee. Nowthis is welcomethe Government say in their consultation paper:
Secondly, and more importantly, I regard it as going fundamentally against the aim of independence to transfer the responsibility of the ultimate appointment from a Lord Chancellor who is by tradition a senior lawyer, acting independently of party, to a Secretary of State for Constitutional Affairs who may not be a lawyer, who may be ranked as the lowest member of the Cabinet, who may have further ambitions and see the role as a ministerial stepping stone, and who may not regard the separation of powers and the integrity of the judiciary as critical to a healthy democracy. I believe that there should be an advisory committee, but advisory to a Lord Chancellor who has the detachment and avoids putting the appointments near the cockpit of party politics.
So I would like to see the post of Lord Chancellor retained, without his being a Minister, responsible for the most important appointments and accountable to this House and to the House of Commons Select Committee on the Lord Chancellor's Department. In this way the aim of securing independence, quality and accountability and appropriate diversity would continue to be achieved.
I would not find a trade-off acceptable between the present arrangements and an independent commission which ultimately led to appointments being made by a very political Minister. We must remember that this is different from any other department of state. All other departments of state are ultimately accountable to the Government. The law is separate. It is a separate branch of the constitution, accountable to the people. I believe that that tradition should be preserved, and the mechanism of adapting the Lord Chancellor's role is a simple one. I have written to the current Lord Chancellor and Secretary of State for Constitutional Affairs about it. I know that the Minister has seen the
Earl Russell: My Lords, 10 years ago in an Unstarred Question Nancy Seear remarked, "If my party should abandon the independence of the judiciary, I would promptly abandon my party". At the time of speaking she had been a member of the party for 60 years. It made the mind boggle. But if she had done so, she would have gone out for the principle for which she came in. She joined the party in the week in which Hitler dissolved the Reichstag and took the power to legislate by decree. So the principle that the law should not be under the control of the executive is constant.
But when we think about a great philosophical principle, I think we miss the sheer raw emotion that there is usually in a confrontation about judicial independence. I was looking this afternoon at Shakespeare's unfortunately apocryphal description of the alleged confrontation between the newly minted King Henry V and the Lord Chief Justice. The raw hurt of the executive comes over from that:
That scene shows a need for courage on one side and magnanimity on the other which is rarely met outside fiction. It is a lot more difficult in the real world. So we need some sort of handrail, a banister, for people to clutch hold of because we have been reminded recently that, when in disgrace with fortune in men's eyes, one is intensely lonely. There must be someone to whom one can turn. Clearly it cannot be a traditional Lord Chancellor. I agree with my noble friend Lord Lester that we cannot go back. But equally clearly it cannot be someone who is simply an ordinary political Minister of the Crown. I think that there are a lot of places we can turn.
One of the things we need to think about in all this is the position of Parliament. People constantly remarkas I believe the noble Lord, Lord Borrie, did tonightthat judges are becoming involved in more and more issues of control of the executive. That, frankly, is because we are failing to do it ourselves. The place where there ought to be a real rousing reception to any attempt to interfere with the independence of a judge is Parliament. It is in Parliament that failure is happening.
I make a few small points. I do not think that all the members of the judicial appointments commission should be Crown appointments. The legal profession has many people capable of doing that sort of thing and their talent should be used. I hope that the responsibility for the care of our public records will remain in judicial hands. I am interested in the remarks of my noble friend Lord Lester about the Attorney-General which I think have potential. But he cannot do
Lord Ackner: My Lords, four minutes provide no time for introductory averments. I take but one pointa preliminary point. Has the Secretary of State for Constitutional Affairs, or any other Minister, sufficient stature to ensure the continued independence of the judiciary?
Much reliance was placed on the support of the noble and learned Lord, Lord Bingham of Cornhill, on the need for a supreme court quite independent from the House of Lords. Giving evidence as Lord Chief Justice on 13th May 1999 to the Royal Commission, he said:
Noble Lords may say that everyone supports judicial independence. It is, after all, the judges and the judges alone who stand between the power of the state and the freedom of the individual under the law, so what is all the fuss about? But does everyone support judicial independence? That very question was answered by Lord Hailsham in the selfsame lecture in these terms:
It has not so far been suggested that the chief or essential function of the Secretary of State is to preserve or defend the judiciary. Until that is stipulated for in statute, the answer to the preliminary question that I have raised must certainly be no.
Lord Brightman: My Lords, the Question before your Lordships relates not only to a judicial appointments commission, but also to the creation of a supreme court of the United Kingdom. That appears to me inevitably to raise a very important issue: whether the time has come to hive off the judicial functions of this House, and presumably bring to an end the convention of making Law Lords ex officio life Members of this House. I declare an interest as a long-retired Law Lord.
There are two preliminary questions to be asked. The first is whether the integrity of the judiciary is compromised by the presence of Law Lords on these Benches. The second is, if not, whether a sufficient contribution is made by active and retired Law Lords to justify their being accepted as ex officio Members of this House. I have nothing to say on the first question, except that I should be horrified if my own integrity as a judge had been at any time at risk because I joined in the legislative and other non-judicial work of your Lordships.
On the second question, the contribution made by Law Lords to the non-judicial work of this House, I suggest that there are four pieces of information which it would be useful to have if they can be extracted with the aid of a computer. First, how many amendments to a Bill of a substantial nature have been tabled by Law Lords over, say, the past 10 years and accepted by the Government without a Division? Secondly, how many drafting amendments have been tabled by Law Lords over a similar period and accepted without a Division? Thirdly, how many places on committees have been filled by Law Lords over a similar period? Fourthly, how many committees have been chaired by Law Lords over a similar period?
I have endeavoured to do a little research on my own. There is now a useful publication issued by the Information Office, rather nicely entitled Who does what in The Lords. This tells me that as at 5th March this year, 12 places on committees were occupied by Law Lords. I have also ascertained, by consulting DOD, that one particular Law Lord in his time acted as chairman of no fewer than nine Select Committees. I have no doubt that research will throw up similar examples.
If the information I have outlined is obtainable, I think that we should have a fair idea of whether the presence of active and retired Law Lords in this House is justified. Government would be able to see what price would have to be paid for dismissing Law Lords as ex officio Members of this House and decide whether that price is acceptable. If the present
Baroness Kennedy of The Shaws: My Lords, like the noble Lords, Lord Lester and Lord Alexander, I was one of the lawyers who gave evidence to the Wakeham commission that the time had come to reform the role of the Lord Chancellor. Although the press have suggested that this constitutional reform has come from left field, in legal circles it has generally been accepted for a very long time that the traditional role of the Lord Chancellor had become untenable and that the time had come to create a supreme court.
I was most forcefully struck by the anomaly when the president of the supreme court of Russia came to London to visit our courts and to meet our senior judiciary. As chair of the British Council, I was given the role of accompanying him on that visit. The British Council had been engaged in assisting a programme of law reform in Russia, including the drafting of legislation to underpin the independence of the judiciary from the state.
As chair of the British Council, I went with Justice Lebedev to meet the Lord Chancellor. On the way, he and I had a lively discussion about the importance of an independent judiciary and how crucial it was to a vibrant democracy. We discussed the role that the judges play in a contemporary legal system, protecting the rights of citizens and providing a control function by determining the lawfulness of government actions. He explained how hard it was to persuade the Russian public, after years of political control, that the judges really were independent and that they could be trusted. But he then with a twinkle asked me to explain how our system worked, with our Lord Chancellor wearing three hats. I have to say that I rather wickedly in return suggested that he ask the Lord Chancellor.
When we went in to see the noble and learned Lord, Lord Irvine, there was the giving of a gift of a delightful samovar, which I am sure appears on his gift list in official bulletins. He asked how it came about that the Lord Chancellor could fulfil all those conflicting roles. The noble and learned Lord, Lord Irvine, gave a very convoluted reply which did not help given that it had to be translated. The explanation was all about tradition and Chinese walls, all of which sounded half-baked to a reform-minded Russian, who would be meeting senior judges from Czechoslovakia and other countries that wanted to apply to belong to the Council of Europe, all of whom were seeking to make their judiciary independent.
The time had undoubtedly come for reform. Indeed, many of us had tried to persuade the noble Lord, Lord Irvine, that he should reform himself but our advocacy was not good enough. All that was needed was a decision by him not to sit again as a judge and the creation of an independent judicial appointments
I want to echo the concerns of the noble Lord, Lord Alexander, about having a Secretary of State who may not take the long view. The Lord Chancellor's role has always transcended the political. It has a constitutional function. The Lord Chancellor is a guardian of the unwritten constitution; he became the guardian of human rights; and he protects the judges. I am anxious, in changing the role, that we ensure that the function does not become one that is purely political with the risk of neglecting those precious checks on the executive.
Like many others here, I am pleased with the general thrust of these reforms. I think that an appointments commission will help to create a much more diverse judiciary. I think that the creation of a supreme court will be a great moment in our constitutional history. Unlike the noble and learned Lord, Lord Brightman, I do not think that an active judge should participate in the legislature. I think that we benefit from having many retired judges in the House and I hope that that may continue.
My lingering concern is that the empire-building impulses of the Home Office machine and the short-term instincts of some politicians will mean that the long constitutional view will not be taken. A judicial appointments commission should not have any political interference. It should be independent; independent of the Prime Minister and independent of the Secretary of State. I echo what has been said by others about the importance of that independence. When we have all given our voice to the reforms, we did not imagine that it would mean the passing of appointments from the Lord Chancellor to the Prime Minister. I think in our modern world that that is unacceptable. Otherwise, I congratulate the Government on their boldness, but I ask them to consider the importance of our constitutional arrangements.
I have a simple point to make. We need far greater clarity as to what it is that we are discussing. The consultation papers make it clear that the most substantial argument advanced by the Government in support of their proposals is that of ensuring the independence of the judiciary. I quote from the foreword written by the noble and learned Lord, Lord Falconer of Thoroton, to the consultation paper entitled Constitutional reform: A Supreme Court for the United Kingdom, in which he refers to calls for the
So we have Law Lords who are independent but who have to be removed from the second Chamber in order to demonstrate their independence. Why? The argument is one of perception. I can see the argument involved, but there is a confusion as to the very concept of independence. The first reference by the noble and learned Lord, Lord Falconer, is to independence in the sense of physical detachment. The second reference is to the capacity to exercise a judgment free of influence by others; in this case, other Peers and members of the executive.
If the existing Law Lords can exercise judgment without being swayed by others, what is the point of removing them from the second Chamber? Separation will not, as the Government claim, enhance the capacity of judges to exercise judgments independent of others; it can only do that if there is some lack of detached judgment, and the noble and learned Lord clearly does not believe that there is. We are not in fact talking about independence but how people see independence. If there is a perception that does not accord with the realitya misperception conceded in effect by the noble and learned Lordone has two options. One can accept the misperception and undertake change in order to ensure that there is a better fit between practice and perception, or one can seek to correct the misperception.
The Government are pursuing the first option. I think they have to make the case for doing so. They have asserted the caseand there are external pressuresbut, given that there is an alternative, they have to argue it more convincingly. The same applies to all those who argue the case for a supreme court.
Given that the focus of the Government is on perceptions, it is all the more surprising that they argue for the involvement of Ministers in the future appointment of judges. The case is based on existing practice and constitutional principles. To date, much has rested on the Lord Chancellor, who because of his judicial capacity is a somewhat detached member of the Government. In futureas my noble friend Lord Alexander of Weedon has saidthe Secretary of State for Constitutional Affairs, like the Prime Minister, need not be a lawyer or anyone with any great knowledge of the judicial process. How, then, does one avoid the perception of possible political interference?
Two main themes run through these papers. The first is the Government's belief that the presence of the Law Lords as Members of this House in some way breaches the so-called separation of powers. Secondly, there is the emphasis placed by the Governmentand rightly placedon judicial independence. Thus, in the supreme court paper it is said that the removal of the Law Lords from the House of Lords would "emphasise and enhance" their independence. In the judicial appointments paper it is said that the new commission will "bolster and guarantee" judicial independence.
The present debate is concerned entirely with the second of those themesthe independence theme. In passing, I should like to say that the first theme is based in my opinion on a complete misunderstanding of the separation of powers as it applies in the context of an unwritten constitution. But that is a debate for another day.
I turn to judicial independence. The supreme court paper applies only of course to the 12 existing Law Lords and their successors. It does not affect the rest of the higher judiciary in any way. Yet it is accepted in the paper, and accepted so far as I know everywhere, that the Law Lords have conducted themselvesand here is the quotation to which the noble Lord, Lord Norton, drew attention,
That being so, I am at a loss to understand what the Law Lords have to gain in the way of independencethis is the very point of the noble Lord, Lord Nortonby being moved at great and at continuing expense to some new premises.
I accept that it may look untidy for the highest court of the land to sit as an appellate committee in this House. The reason, of course, lies far back in our history. I accept also that appearances matter, but appearances are not everythingnot even in this Administration. To me, it does not make senseindeed, it is the merest pedantryto argue that the Law Lords should be moved to some other building. That would deprive this House and the country of the views of the Lord Chief Justice, and of judges of the eminence of the noble and learned Lords, Lord Wilberforce and Lord Scarman, and many
I turn to the other paper, where it is said in paragraph 22 that the selection of the judges by the Lord Chancellor as a member of the Cabinet is a potential source of patronage over the judiciary and is quite out of place in a modern democratic society. Those are fine words, but let us read on a few paragraphs. What do the Government suggest should be put in the Lord Chancellor's place? Who, in the Government's view, is to have the final say on making recommendations for judicial appointments? Who is to determinesinister wordsoverall policy in relation to judicial appointments? None other than the Secretary of Stateanother member of the Government.
It is said that that is necessary because of the constitutional convention that the Queen always acts on the advice of Ministers. Quite right, but so she does when she acts on the advice of her Lord Chancellor. The Government cannot have it both ways. If it is a constitutional affront for the Lord Chancellor to select the judges, so also it is a constitutional affront for the Secretary of State to select the judges. Here I agree entirely with what was said by the noble Lord, Lord Alexander, and the noble Baroness. Indeed, it might be said to be a greater affront because whereas the Lord Chancellorand not least the noble and learned Lord, Lord Irvine of Lairgby virtue of his higher office and experience of the law has traditionally protected the independence of judges, the Secretary of State might bewellanybody.
As for the new judicial appointments commission, it is pure window-dressing since the Secretary of State has the final say and can reject the recommendations if he does not like them. In any event, we already have a Commission for Judicial Appointments, as recommended by Sir Leonard Peach. Why do we need two? These papers are full of holes, and the only, and most charitable, explanation is that given by the noble Lord, Lord Nortonthey were prepared in too much of a hurry.
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